August 2000

Ethics and the Law
Big Brother is Watching: Discipline for "Private" Conduct

by Barrie Althoff, WSBA Chief Disciplinary Counsel

This article looks at whether a lawyer should be subject to professional discipline for conduct that arguably is "private" conduct unrelated to the practice of law. It does so by first looking at the philosophical and cultural heritage underlying a possible distinction between private and public conduct. It then looks at how the ABA Model Rules of Professional Conduct treat private and public conduct. It then looks at how one state, Washington, has sanctioned lawyers for arguably private conduct. Finally, it draws some conclusions and gives one possible answer to the question: "Should lawyers be subject to discipline for 'private' conduct?"

The question of whether a lawyer's "private" conduct should subject the lawyer to discipline assumes that a lawyer's conduct should analytically be divided into mutually exclusive categories of "public" and "private" conduct. For this article, "private" conduct means a lawyer's conduct not involving the lawyer acting as a lawyer when engaged in the conduct.

Classifying conduct as public or private may merely manifest the classifier's conclusion that the conduct should or should not be subject to public sanction. Since most human conduct has some direct or indirect effect on others, a classification must flexibly reflect changing evaluations of conduct in different cultures and at different times. Even a person's sleeping, the ultimate (other than a coma or death) turning away from the public and retreat into the private world of self, may affect the public when the sleeper does so while driving; flying an airplane; or serving as a judge, lawyer or juror during a trial. But we also believe some areas of human conduct should be "private" and of no concern to others, and thus not subject to regulation. Because there can be no fixed and precise dividing line between them, there will always be some uncertainty as to where that line lies, just as beach strollers may wonder whether a particular incoming swell will encompass them as they dance in the surf. For lawyer discipline, the tough question is where do we draw the line between public and private conduct.

Historical, religious and literary writers have long recognized that there is a continuum of human activity and that, with changing perspectives, so called "private" conduct may equally well be "public" conduct. Does the discipline imposed on Adam and Eve for eating the fruit of the forbidden tree (Genesis, 2:15-3:19) find a parallel today in a lawyer being disciplined for smoking the fruit of the forbidden cannabis plant? Is giving someone a haircut private or public conduct — or does it only matter if the giver is Delilah and the recipient is Samson (Judges 16:19)? Does the disruption of public affairs caused by Paris running away with Helen, his brother's wife, or by King Henry VIII divorcing his wife to marry others, have a parallel in the disruption of public affairs caused by the conduct of a lawyer president allegedly obstructing justice to keep hidden "private" sexual conduct? Should adultery by a military officer be subject to professional sanction, while adultery by a lawyer should not? Should a lawyer's lying about adultery have different consequences depending on whether the lie is to the spouse at home or is in a deposition under oath? Does all conduct, or does just some conduct, which is arguably private, have public consequences? Has Adam and Eve's, "Do I dare to eat the fruit of the forbidden tree?" become for our generation J. Alfred Prufrock's timid, "Do I dare to eat a peach?" While both recognize the interconnectedness of human conduct, is bifurcating our conduct into "public" and "private" an attempt to avoid accountability for the consequences of that conduct, or is it rather acknowledging accountability but questioning instead the propriety of the jurisdiction?

Although the ancient Greeks recognized the analytical distinction between individual and community conduct, all conduct was seen as having public consequences. Private and public were inextricably interwoven, and individual and community conduct necessarily affected one another. Personal ethics and public responsibility were so united through the primal concept of justice that it was nearly impossible to think of an individual as a moral being separate and apart from the community. The ancient Greeks understood, as lawyers should today, that justice is a preeminent social value without which distinctions of public and private conduct have little meaning. Thomas Hobbes's description (Leviathan, Part I, Chapter XIII) of human life in a society not based on law, by which he understood justice as well, as "solitary, poor, nasty, brutish and short," would have been understood by Plato and Aristotle. Our raison d'être as lawyers must be serving and centering ourselves on justice. Unless we do so, we are nothing, or, to borrow T. S. Eliot's words (The Hollow Men):

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!

The ancients would well have understood that unless we as lawyers speak for justice, we have nothing worth saying, or, to again borrow Eliot's words from the same poem, when we speak without being centered on justice,

Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats' feet over broken glass
In our dry cellar.

What does justice have to do with "public" and "private" conduct? For Plato, justice embodied the idea of the ultimate community good and reflected the correct regulation of the spiritual and physical needs of the individual and of the community. Or, as one commentator put it, justice was seen as a "state of harmony in the soul, an inner intellectual and moral order which corresponds to the order in the external world." Eduard Zeller, Outlines of the History of Greek Philosophy, 13th Edition (New York, 1955), p. 157. Plato initially based his ethical theory on a concept of the unity of all virtues whereby different virtues were merely variants for the same moral attitude. Ibid., p. 154. Under this approach, virtue, or right conduct, was based on knowledge and was teachable. Man became good only by knowledge of the good and could not truly know the good without being good. The failure to do good was an error to be cured by instruction. Applied to today's lawyer, a lawyer's conduct is all effectively public conduct and if the lawyer commits misconduct, the harm to the community is cured by educating or training the lawyer. If the conduct relates to the lawyer's law practice, for example, the lawyer should be sent to a continuing legal education program. There is no room in this approach for disregarding some conduct as "private" conduct.

Plato also recognized that sometimes people know what is right, but do not do it. Thus, his later work sees misconduct not as error based on a lack of knowledge, but rather as a disease to be remedied by punishment. Under this approach, it is a great misfortune for an individual to commit misconduct and not be punished, since only through punishment comes improvement. Ibid., p. 154-155. Applied to today's lawyer, if a lawyer commits misconduct (whether public or private), the community heals both itself and the lawyer by disciplining the lawyer, for only then will the lawyer improve and the community be healed.

Aristotle rejects Plato's initial identity of knowledge and virtue. Instead, he firmly roots ethics in human action and experience, as when he compares persons who think they will acquire a virtue by acquiring theoretical knowledge of it to patients who listen attentively to their doctor but do not carry out the physician's orders. Nichomachean Ethics, 1105b12-18 (in The Basic Works of Aristotle, ed. Richard McKeon, Random House, New York, 1941). Applied to lawyers, a lawyer becomes ethical not merely by knowing the Rules of Professional Conduct, but rather by living those rules.

For the individual, Aristotle identifies human happiness as the supreme value (that for the sake of which all else is done) and concludes that only in a community can an individual find happiness. He defines happiness as the full and best exercise over a lifetime of the individual's rational and non-rational faculties, an exercise that calls for constant balancing between shifting extremes. Like Plato, Aristotle identifies justice as the supreme value for the community, noting that it includes both what is lawful and what is fair and equal. Justice is the correct apportionment of punishment and rewards. Waxing poetic, he writes (Nichomachean Ethics, 1129b26-31 & 1130a9-10):

Justice is often thought to be the greatest of virtues, and "neither evening nor morning star" is so wonderful; and proverbially, "in justice is every virtue comprehended."…Justice in this sense, then, is not part of virtue, but virtue entire.…

He divides justice into various categories including "remedial justice," which deals with civil and criminal law. Lawyer discipline would likely fit within this category as well.

Since justice for Aristotle is based on experience and action, it must be fact and conduct specific. Thus, in considering the justness or unjustness of an act which damages another, Aristotle distinguishes whether the act was voluntary, involuntary, accidental or a mistake; whether the damage was foreseen or intended; and whether the damage would normally result from such action. Nichomachean Ethics, 1135a1-1136a10. He notes that equity, being based on the particular, is a higher form of justice than legal justice, and that equity is "a correction of law where it is defective owing to its universality." Ibid., 1137b26-27. Aristotle thus anticipates the role of equity and aggravating and mitigating factors in determining lawyer disciplinary sanctions. He also demonstrates that the morality of any specific conduct cannot be wholly determined by rules, but rather that the morality of an act varies according to all the facts and circumstances. He would have made an excellent respondent's counsel in lawyer disciplinary proceedings.

For both Plato and Aristotle, all conduct, without regard to it being classified as "private" or "public," manifests the same underlying moral character. Unlike later philosophers such as Herbert Spencer, who feared the loss of individual rights and liberties at the hands of the state, both Plato and Aristotle saw the role of "law" and of the state as extending over the whole of both "public" and "private" life and as encouraging and enforcing actions that lead to "social" virtue. Aristotle, Politics, 1252a1-1253a39. For them, an individual's actions take place in the context of a community, and thus they have a public aspect. The community serves the positive end of the individual by making it possible for the individual to attain happiness. For both Plato and Aristotle, the community existed for the individual, but the individual was inextricably part of that community. Since the role of the community was to make complete and ethical development of its citizens possible, all of an individual's conduct was subject to community oversight and sanction. For Aristotle and Plato, "big brother is watching" would not have been an inimical concept or an Orwellian specter. Rather, it would be viewed as wholesome and supportive, suggesting that the community resources were available to help guide and nurture the individual to personal and social fulfillment, much as the concept is used in today's community action groups "Big Brothers" and "Big Sisters."

Of course, Aristotle might well conclude, applying the role of equity and other fact-specific considerations, that the particular conduct, although affecting the public, should not lead to a sanction. Applying this to today's lawyer, all of the lawyer's conduct would be subject to disciplinary consideration, but fact-specific analysis might well lead to no community or "public" action as to particular acts.

More metaphorically, for the ancients there was an interactive continuum of nature, man and the divine. Ovid's Metamorphoses, wherein men and women, rocks, trees, animals, streams, stars, giants and gods become or metamorphose into one another, poetically demonstrates this interconnectivity. So does Aesop's Fables. In both, all conduct, whether of man or animal, has a public impact. While today's environmental consciousness perhaps recaptures a piece of this interconnectivity, we have largely lost the ancient holistic notion of the individual and community wherein the individual and his or her surroundings are one, and where all aspects of the individual's character, traits and conduct are an integral part of the whole that makes up the individual and the community. Instead, we today tend to compartmentalize our lives, placing ourselves in separate boxes, some of which we label "public" and some of which we label "private."

The ancient's inclusive view of the accountability of all human conduct was balanced by the concept of sanctuary. In ancient Greece, Rome and Egypt, and in England into the 18th century, a person accused of misconduct could seek refuge or sanctuary from arrest and prosecution by fleeing to certain temples, churches or royal palaces. While there was minute regulation of the right, so long as the person remained in the sanctuary, legal action against the person was suspended — although sometimes sanctuary was disregarded. The concept was based on the perceived sacredness or holiness of the location, that anyone at the location partook in that sacredness, and that it was sacrilegious to remove by force anyone who had taken refuge there. When, in 322 B.C., Demosthenes fled to the temple of Poseiden seeking sanctuary, the pursuing soldiers stopped at the temple doors.

The concept of the church as a physical sanctuary and the clergy as intercessor between the state and the individual as it developed during the middle ages in England also helped shape the common law's development of the concept of equity. It also helped shape our notions of what constitutes a learned profession wherein the member "professes" himself or herself as called and adhering to certain high ideals and standards of conduct. In a religious vocation or profession, of course, there is no such distinction as "private" conduct and "public" conduct, since all conduct is subject to oversight by God to whom "both dark and light are one" (Psalm 139, verse 12).

Today, a lawyer being charged with disciplinary misconduct may try to seek a modern equivalent of a sanctuary through the classification of his alleged misconduct as "private" conduct which, the lawyer argues, should be exempt from disciplinary action as surely as lawyer Demosthenes sought refuge in the ancient temple.

The ABA Model Rules of Professional Conduct, reflecting their name, adopt a compartmentalized view of lawyer conduct. They address a lawyer's public or professional conduct, but largely disregard the lawyer's "private" or personal conduct. The Scope section of the Rules recognizes this narrow approach:

The Rules presuppose a larger legal context shaping the lawyer's role.… The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

Despite the cautionary language that other "moral and ethical considerations should inform a lawyer" and that the rules provide but a "framework for the ethical practice of law," the narrow scope of the rules leads many lawyers and members of the public to conclude that the RPCs constitute the legal profession's complete declaration of what constitutes ethical morality for lawyers. They confuse the part with the whole. In short, they understand that if a lawyer complies with the RPCs, the lawyer is an ethical lawyer as far as the legal profession is concerned.

The legal profession's ethical rules do not claim to set out the "best" ethical practices, nor are they guides for the lawyer to become a complete moral person as envisioned by Plato or Aristotle. The preliminary statement to the Model Code of Professional Responsibility cautions that the ethical rules merely "state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." The Preamble to the Model RPCs advises that "a lawyer is also guided by personal conscience" and that "difficult issues of professional discretion… must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules." The professional rules are merely the basement level, the lowest common denominator, of acceptable lawyer conduct. Lawyers who consider compliance with them to be complete fulfillment of legal ethics are the equivalent of the cave dwellers in Plato's The Republic who sincerely and contentedly believe that mere shadows are reality. But believing it so does not make it so.

The limited scope of the RPCs has several consequences. From the perspective of the lawyer, if the RPCs do not prohibit conduct, it is seen as permitted, and if the RPCs do prohibit conduct, only that specific conduct, and no other conduct, is seen as prohibited. From the perspective of the public, if the rules do not prohibit conduct, they are seen to condone it. Conduct not prohibited by the rules on the basis that the rules deem it to be "private" conduct, or that it involves "personal morality," is in effect considered to be ethical conduct by the legal profession. It is questionable, however, whether the public, looking at the larger "moral and ethical considerations that should inform a lawyer," and being directly affected by the conduct in question, accepts such conduct as "private" and whether it does not instead believe it is public conduct that should be sanctioned. To the public, the legal profession claims special rights but then develops a self-protective morality insulating itself from accountability to the public.

The Scope section of the Rules lays the groundwork for disciplinary enforcement. It provides that "[f]ailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process." The section then incorporates a facts-and-circumstances standard for evaluating lawyer conduct and recognizes, as did Aristotle, various factors relating to the degree of culpability.^[1]  Immediately thereafter, however, the Scope section further compartmentalizes — and some would say, self-immunizes — lawyer misconduct. While the Scope section of the RPCs acknowledges that violation of the RPCs subjects a lawyer to discipline, it also cautions that:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.

Thus, while proven unethical conduct by a lawyer is sufficient to hold that lawyer accountable to the "public" through the disciplinary process, it is not of itself sufficient to hold that lawyer accountable to the individual member of the public who has been actually harmed by the lawyer's conduct. Instead, the person harmed must further prove the lawyer failed in his "professional responsibility" to the person. Lawyer discipline, like criminal prosecution, vindicates the public interest, but the private harm remains uncured. This compartmentalized approach to justice often leaves the harmed individual with a theoretical remedy but without an actual one. In each case, societal justice has been served, but individual justice has not. In neither case is complete justice, as understood by the ancients and by the public, done.

The narrow scope of the Model RPCs, and of discipline thereunder, is reflected in the Model RPCs themselves. What constitutes "misconduct" under the Model RPCs is not set out until the penultimate rule, appearing almost as an afterthought. Model RPC 8.4 provides:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(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 misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

The various subsections of Model RPC 8.4 define what conduct is subject to lawyer discipline under the Model RPCs. Although that conduct is mostly conduct as a lawyer (which we typically think of as "public" conduct), it also includes several categories of conduct, primarily described in RPC 8.4(b) and (c), which do not involve conduct as a lawyer, but may relate to character traits deemed relevant to the practice of law. Finally, RPCs 8.4 (d), (e) and (f) include conduct prejudicial to or interfering with the administration of justice, which has generally been interpreted as applying only to clear violations of accepted practice norms by lawyers in their official role or conduct which physically interferes with enforcing the law. See, e.g., In re Curran, 115 Wn.2d 747, 764-765, 801 P.2d 962, 1 A.L.R.5th 1183 (1990). The following briefly discusses subsections (a) and (c), and then more extensively looks at subsection (b).

Model RPC 8.4(a) covers the most obvious of professional misconduct, namely violation of an RPC provision. In effect, it states that it is professionally unethical for a lawyer not to meet the specified standards of conduct directly related to the practice of law. The conduct covered by RPC 8.4(a), namely a violation of a provision of the RPCs, with a few arguable exceptions (such as rules or proposed rules prohibiting sexual relationships with clients), is all clearly "public" conduct directly related to the practice of law and is generally acknowledged as appropriate for professional regulation. For some lawyers, compliance with the letter of the RPCs is, as noted above, the sum and substance of being an "ethical" lawyer.

Model RPC 8.4(c) includes as professional misconduct a lawyer's engaging in civil conduct "involving dishonesty, fraud, deceit or misrepresentation." Lawyers are, of course, already required to be honest in their law practices by several provisions of the Model RPCs, including RPC 1.15 (protecting client funds), RPC 3.3 (candor toward the tribunal), RPC 3.4 (fairness to opposing party and counsel), and RPC 4.1 (truthfulness in statements to persons other than clients). The importance of RPC 8.4(c) is that it recognizes the paramount importance of honesty for a lawyer not just in the lawyer's professional or "public" conduct, but also in the lawyer's nonprofessional or "private" conduct. RPC 8.4(c), however, in effect excludes from professional concern the entire universe of conduct outside that narrowly defined area relating to honesty. In essence, so long as the conduct does not involve "dishonesty, fraud, deceit or misrepresentation," the lawyer's civil misconduct is again deemed irrelevant by the legal profession and the lawyer is considered an ethical lawyer. In effect, RPC 8.4(c) provides that such conduct, as far as the legal profession is concerned, is "private" conduct in which the profession will take no interest.

Model RPC 8.4(b) raises difficult issues as to what minimum level of conduct is acceptable to the legal profession for its members and as to what extent the profession is willing to be accountable to the public. Even more clearly than RPC 8.4(c), RPC 8.4(b) raises the distinction between "public" conduct in which the profession will take an interest and "private" conduct it will ignore. RPC 8.4(b) makes professional misconduct the commission of a "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Inversely, it in effect states that of the entire universe of possible criminal acts, only those criminal acts which fall within the narrow category of reflecting "adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" are considered by the legal profession to be professional misconduct, and that all other criminal conduct by a lawyer is of no concern to the legal profession. While recognizing that some criminal conduct is not intentional, but rather accidental, negligent or a matter of conscience, given that the essence of a crime is that it is deemed an offense against the state or the public, it seems anomalous to exclude most criminal conduct when considering whether a lawyer has met the ethical standards of the legal profession. By definition, a crime is "public" conduct which has an effect on the public, but by RPC 8.4(b) most crimes are in effect deemed "private" conduct of no ethical concern to the legal profession. Aristotle would find this very puzzling.

The words "fitness as a lawyer in other respects" in RPC 8.4(b) appear initially to be weasel words, difficult to grasp or define, and encompassing considerably more than just "honesty" and "trustworthiness." They have been interpreted narrowly, however, to require a nexus between the lawyer's conduct and characteristics relevant to the practice of law on the basis that they are not concerned with maintaining public confidence in the bar by disciplining lawyers harming the public image of the bar, but rather with protecting the public from incompetent lawyers. See, e.g., In re Curran, 115 Wn.2d 745, 868, discussed below.

The language of RPC 8.4(b) describes a very narrow category of crimes deemed professional misconduct. Arguably, under 8.4(b) a lawyer may extensively, repeatedly and publicly engage in any and all other criminal acts without being considered by the legal profession to be engaged in professional misconduct. In effect, the profession would willingly maintain the license of such a person as an officer of the court qualified to provide legal services to the public. The preamble to the RPCs states that a lawyer is a "public citizen having special responsibility for the quality of justice." Is this consistent with the RPCs exemption of a lawyer's "private" crimes from regulatory review? The Preamble to the Model Code of Professional Responsibility describes lawyers as "guardians of the law." The Preamble to the RPCs does not. Does this change implicitly recognize that if lawyers may freely commit criminal acts and yet not be deemed guilty of professional misconduct, they no longer deserve to be seen as "guardians of the law"? But if lawyers cannot be counted on to be guardians of the law, who can be?

Comment 1 to the Model RPCs rejects the concept of a unified personal/professional morality of the type envisioned by Plato and Aristotle. Instead it embraces a public/private dichotomy when it concludes that "some matters of personal morality…have no specific connection to fitness for the practice of law." Rejecting the traditional concept of "moral turpitude" found in the Code of Professional Responsibility (see Disciplinary Rule 1-102(A)(3)), the comment restricts the scope of lawyer discipline to only that conduct that it believes indicates a lack of those characteristics relevant to law practice, which it names as including offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice.

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. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include 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. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. 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. [Emphasis added]

In theory at least, under the Model RPCs a lawyer could engage in extensive illegal conduct and be convicted of numerous crimes (other than those above specified), be imprisoned for them, and still be permitted to practice law. The Model RPCs' declaration that "some matters of personal morality…have no specific connection to fitness for the practice of law" and that "a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice" embraces an ethical dichotomy that would be unfathomable to Plato or Aristotle. It is likely also equally hard for the public to understand. It is equally questionable in light of the historic and cultural basis of a profession or vocation as a calling, a professing, of one's entire self to a higher goal. Under the ethical bifurcation of the Model RPCs, a morally bad person in society's view can, in the legal profession's view, be an entirely ethical lawyer fully qualified and competent to work for justice.

The divergence of professional and public views of appropriate lawyer conduct can be explained in part by the limited purpose of the professional regulations discussed above. That limited purpose is also reflected in the ABA Model Rules for Lawyer Disciplinary Enforcement (Enforcement Rules) and the ABA Standards for Imposing Lawyer Sanctions (Standards), which together provide suggested mechanics for a disciplinary system and imposition of sanctions.

The Enforcement Rules do not examine the purpose of lawyer discipline, but merely treat discipline as a logical corollary to the court's exclusive and inherent power to admit lawyers to practice and to maintain standards of professional conduct. Rule 9(A) of the Enforcement Rules sets out only three grounds for lawyer discipline: 1) violation of the jurisdiction's RPCs; 2) violation of another jurisdiction's RPCs; and 3) violation of certain of the Enforcement Rules. Since the Model RPCs basically limit professional misconduct to conduct related to the practice of law, the Enforcement Rules consistently limit enforcement to the same violations. The commentary to Rule 9 of the Enforcement Rules, for example, observes that not every violation of the professional conduct rules requires the imposition of a sanction.

The Standards help determine the appropriate sanction by adopting an analytic model which first identifies the ethical duty violated and to whom the duty is owed, then looks at the lawyer's mental state (was it intentional, negligent), and finally looks at the amount of injury caused by the misconduct. A stated goal of the Standards is to differentiate between conduct which has an extremely deleterious effect on the client, public, legal system or profession, and conduct which has only a minimal effect. Only after this initial categorization takes place and the appropriate "presumptive" sanction is determined do the Standards consider various aggravating and mitigating factors. This highly factual evaluation of the misconduct to determine the appropriate sanction suggests Aristotle's approach in the Nichomachean Ethics to determining the morality of an act. Aristotle, however, was looking at a far more complete evaluation of conduct, one more in keeping with the public expectation, than does the disciplinary process.

The Standards, by definition, do not define what conduct is to be subject to discipline; rather, they assume a violation has been found. The purpose of the Standards is simply to determine what, if any sanction, is appropriate for the misconduct. Standard 1.1 states more broadly the purpose of disciplinary proceedings:

The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.

Rule 4.11(a) of Washington's Rules for Lawyer Discipline simply states that "disciplinary proceedings are…intended to determine whether a lawyer's conduct should have an impact upon his or her license to practice law." Neither statement, however, can be a complete statement of purpose since discipline must also necessarily seek to instill public confidence in the legal system. See, In re Rentel, 107 Wn.2d 276, 729 P.2d 615 (1986). In the fact scenario given above of a lawyer committing crimes but not subject to professional discipline, the discipline system may adequately "protect" the public but still fail to instill public confidence. To that extent, the system fails both the lawyer and the public.

Not all jurisdictions follow the ABA Model RPCs in defining professional misconduct so narrowly and in rejecting the traditional concept of moral turpitude. Washington, for example, has chosen a more encompassing, but still restricted, view of what conduct of a lawyer is subject to discipline.

Washington's substantive rules of lawyer conduct are its Rules of Professional Conduct. Although largely modeled on the ABA Model Rules, Washington did not adopt the comments to the model RPCs. In addition, Washington retained a few parts of the ABA Model Code of Professional Responsibility, including much of its preamble and its concept of moral turpitude. Washington's disciplinary procedural rules are its Rules for Lawyer Discipline (RLDs).

Compared to Rule 9(A) of the ABA Enforcement Rules discussed above, which set out only three grounds for lawyer discipline, Washington's RLD 1.1 sets out 16 grounds for lawyer discipline, only one of which, (RLD 1.1(i)), is violation of a provision of an RPC. For a discussion of those grounds, see Barrie Althoff, "Losing or Damaging the License to Practice Law, " Washington State Bar News, October 1999, p. 48. While most grounds for discipline directly relate to the practice of law, the Rule's very first ground for discipline (RLD 1.1(a)) retains the concept of moral turpitude and meets head on the issue of whether sanctionable conduct is limited solely to public conduct. RLD 1.1(a) provides that a lawyer may be subject to disciplinary sanction for:

The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding. [Emphasis added]

The Washington Supreme Court has wrestled a number of times, usually in cases involving violence, drunk driving or sex, with whether to discipline a lawyer for conduct not directly related to the practice of law.

In a case arising before the Washington Supreme Court adopted its current RLDs and RPCs, the court concluded that a lawyer striking a person in the face with a wine glass in a barroom brawl, for which the lawyer pled guilty to simple assault, was not guilty of an act of moral turpitude subject to disciplinary sanction. In re Kuvara, 97 Wn.2d 743, 649 P.2d 834 (1982). Unfortunately, the opinion's reasoning is largely conclusory rather than analytical. In reaching its conclusion, it quoted with approval (at 746) the Arizona Supreme Court's decision, In re Johnson, 106 Ariz. 73, 75, 471 P.2d 269 (1970):

Isolated, trivial incidents of this kind not involving a fixed pattern of misbehavior find ample redress in the criminal and civil laws. They have none of the elements of moral turpitude, arising more out of the infirmities of human nature. They are not the appropriate subject matter of a solemn reprimand by this Court.

After observing that the victim in Kuvara won a $60,000 award in a civil lawsuit against the lawyer for "inadvertent but negligent use of a wine glass," Kuvara concluded (at 746):

In the present case, the assault was an isolated incident, arising out of momentary thoughtlessness, rather than being prompted by malice. Redress has been obtained through both the criminal and civil law. The incident is therefore not an appropriate cause for sanction under DRA 1.1(a).

The court did not ask what the victim or the public might think about its conclusion that a lawyer's violence, which left the victim with hearing loss, nerve damage and scarring, was not an appropriate cause for professional discipline.

It is uncertain that the court would reach the same decision today. The court recently censured and suspended a judge for, among other things, publicly assaulting his wife. In re Turco, 137 Wn. 227 (1999). The underlying decision of the Washington Commission on Judicial Conduct (No. 97-2451-F-66) recites that after entering a church hall with his wife, the judge argued with her, said to her, "No one speaks to me like that and gets by with it," and then "intentionally shoved or pushed his wife, causing her to fall to the floor. After knocking her down, Respondent walked away making no effort to assist or apologize." The court found that this action violated Canons 1 and 2(A) of the Judicial Conduct Code. The court rejected, however, the Commission's recommendation to remove the judge from the bench as unwarranted under the circumstances, observing that the people's choice in judicial elections (all Washington judges are subject to election) should not be lightly set aside. The Commission's underlying decision states that "[T]his assault took place in a public setting in the presence of two witnesses," and that the assault took place just seven days after the Commission had admonished the judge for "making injudicious comments in regards to domestic violence matters." Suppose the assault had taken place, as most domestic violence does, in the "privacy" of the home? Would the result have been different? Would that conduct have been deemed "private" and not subject to professional response, or would it simply not have been prosecuted?

Later in the same year as Kuvara, the court found another lawyer's assault to be an act of moral turpitude. In re McGrath, 98 Wn.2d 337, 655 P.2d. 232 (1982). An attorney carrying a concealed gun got into an argument in a restaurant, and after being struck while leaving the restaurant, shot and seriously wounded a person. He pled guilty to second-degree felony assault. The court stated (at 342-343):

To determine if moral turpitude is involved, the question to be answered is this:

Now, do the acts found against the appellant, and for which he was convicted…violate the commonly accepted standard of good morals, honesty, and justice? Suppose we measure his conduct in this regard, not by any puritanical standard, but by the standard of right conduct generally prevailing among our people, uninfluenced by the fact that the statute law also punishes such conduct as a crime. What, then, is the answer to the question whether or not such acts involve moral turpitude?

In re Hopkins, supra [54 Wn. 569, 103 P. 805 (1909)] at 572.

The definition of moral turpitude is necessarily general. In the setting of attorney discipline, its application depends upon the collective conscience and judgment of the members of this court. It is as meaningful as other phrases adopted by other courts.…

Applying the Hopkins standard, we find that McGrath's conduct involved moral turpitude for several reasons. First, it was an unjustifiable act of violence against another human being. Such violence has never been condoned under any legal system, ancient or modern. Second, while McGrath was licensed to carry a weapon, his carrying of a loaded pistol on many occasions and in situations where he had consumed considerable alcohol is not in [342/343] keeping with the prevailing standard of right conduct… Furthermore, conviction of a crime with an intent element of "knowingly" is some evidence, although not conclusive, that moral turpitude was involved.

In determining the appropriate sanction, the court stated (at 344-345):

The most persuasive factor in our decision to disbar respondent is the maintenance of respect for the honor and [344/345] dignity of the legal profession. An Ethical Consideration in the Code of Professional Responsibility [CPR EC 1-5] states:

Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for the law. To lawyers, especially, respect for the law should be more than a platitude.

After the Kuvara and McGrath cases, the Washington Supreme Court amended its RLDs to specifically make "any unjustified act of assault" subject to discipline.

The Washington Supreme Court's most extensive consideration of the relationship between a lawyer's public and private conduct involved a lawyer convicted of vehicular homicide, whose drunk driving killed two passengers. Although the passengers killed were clients of the lawyer, that fact was not material to the court's holding. Concluding that the lawyer committed an act of moral turpitude, the court suspended the lawyer from practice. In re Curran, 115 W.2d 747, 801 P.2d 962 (1990). The court stated (at 756-7):

… this case calls into question the very purposes of lawyer discipline and…involves serious misconduct not directly related to Mr. Curran's professional life. The modern trend focuses lawyer discipline fairly tightly upon conduct which directly interferes with the administration of justice or occasions doubt about a lawyer's competence or honesty. The American Bar [756/757] Association Model Rules of Professional Conduct (1983) do not forbid all acts involving "moral turpitude" as the prior ABA Model Code of Professional Responsibility had .…This court's rules, however, do not fully embrace the modern trend. They forbid all acts involving "moral turpitude" and have recently been amended to include an "act which reflects disregard for the rule of law." RLD 1.1(a). On the other hand, this court has adopted the ABA Standards for Imposing Lawyer Sanctions (Approved Draft, 1986), which are keyed to the Model Rules, and embrace the modern trend by putting more emphasis on disciplining lawyers for violations of practice norms. Thus, the question of whether Curran's acts merit discipline and if so, what sort of discipline, are very difficult and close questions.

Curran found no grounds for discipline under Washington's RPC 8.4 (then identical to Model RPC 8.4), but instead looked to Washington's RLD 1.1(a), set out above. Due to constitutional concerns of vagueness over the broad language of RLD 1.1(a), Curran limited the phrase "act which reflects disregard for the rule of law" to violations of criminal law. It concluded that the lawyer's drunk driving resulting in the death of two passengers reflected such a disregard for the rule of law, and explained why acts of a lawyer (whether within or outside the practice of law) which reflect disregard of the rule of law merit lawyer discipline:

Our system of government is based on the notion that democratically established law governs disputes between people and defines which conduct is so abhorrent that it merits criminal sanctions. The lawyer has a key role to play in seeing to it that general rules actually determine the results of particular disputes. The lawyer's presentation of facts enables judges to decide those disputes which cannot be settled. The lawyer also identifies those rules of law which apply to a situation. Most rules of professional conduct apply to the lawyer's role in advising clients and representing them before courts.

If the legal system depended only upon legal processes involving lawyers to secure compliance with our laws, however, it would break down. The legal system relies more heavily, but less obviously, on voluntary compliance with [761/762] the law than it does on enforcement or even dispute resolution. The respect which our legal institutions command makes this possible.

Unfortunately, violations of the law by lawyers contribute to erosion of respect for legal institutions and the law. As we have stated on many occasions, the purposes of lawyer discipline are to "protect the public and to preserve confidence in the legal system." (Emphasis added.) In re Rentel, 107 Wn.2d 276, 282, 729 P.2d 615 (1986). The existence of a rule which may apply to conduct not involving an attorney in a professional role attests to the continuing vitality of the concern for preserving confidence in the legal system. See RLD 1.1(a).

On the other hand, not all legal violations by attorneys reflect a disregard for the rule of law. Some involve not disregard, but defiance on the basis of conscience. Others may involve accidental conduct.

Moreover, the purposes of bar discipline do not precisely duplicate the purposes of criminal law. …

In determining which criminal conduct reflects disregard for the rule of law requiring bar discipline to supplement criminal sanctions, the bar association should consider two factors – the frequency of violation, and the seriousness of the injury caused. [Emphasis added.] Repeated violations of the law show the kind of disregard which sets such a poor example for the community at large that it may merit discipline under this rule. See, e.g., In re Alkow, 64 Cal. 2d 838, 415 P.2d 800, 51 Cal.Rptr. 912 (1966) (suspending an attorney who committed vehicular homicide who had a history of traffic offenses). Curran does not have a record of repeated law violations, so this does not justify imposing discipline in this case. [762/763]

Criminal conduct having particularly serious consequences merits bar discipline as well. Generally speaking, such conduct shows that the actor was willing to break the law even though his or her actions could cause injuries the law takes very seriously.

We realize that Curran did not intend to kill the people he attempted to drive home. He did, however, choose to drive. We think the willingness to take that much risk of causing death or serious injury through violation of criminal law reflects a disregard for the rule of law serious enough to warrant sanctions beyond those imposed by the criminal justice system.

The Kentucky Supreme Court suspended an attorney convicted of two counts of vehicular homicide and relied heavily on the fact that his actions would bring disrepute to the bar if left unpunished. Kentucky Bar Ass'n v. Jones, 759 S.W.2d 61, 63 (Ky. 1988). We agree that attorneys convicted of crimes involving violent death of their victims bring disrepute to the bar. [footnote omitted] More importantly, they bring the kind of disrepute which undermines the respect for legal institutions which undergirds voluntary compliance with the law in this country. Accordingly, we find that Curran's actions reflect disregard for the rule of law and merit discipline. [115 Wn.2d 747, 761-3]

The Curran court did not consider whether the misconduct in question constituted "moral turpitude," because disciplinary counsel did not charge that ground. The disciplinary counsel who handled the prosecution has since stated that this ground was not charged because there was then insufficient authority supporting such a charge, but that now, with the significantly decreased public acceptance over the years of drunk driving, such a charge might not now be out of the question.

Curran listed two factors, frequency of violation and seriousness of injury caused, for determining which criminal conduct warranted disciplinary action. These factors give a court considerable flexibility to ignore an isolated minor violation, but sanction for repeated minor violations. For example, a court might appropriately ignore for disciplinary purposes a lawyer's conviction for a single act of jaywalking, but equally appropriately sanction a lawyer's conviction for repeated jaywalking. The court might also apply an Aristotelian facts and circumstances analysis and further distinguish cases of a lawyer who repeatedly jaywalks in isolated deserted areas (no sanction) from one who, well known as a lawyer, does the same thing at rush hour immediately in front of the courthouse after being cited and warned not to do so.

More recently, the Washington Supreme Court again explored the boundaries of public and private conduct when it found a lawyer committed an act of moral turpitude by having sexual relations with a brain-injured client. In re Heard, 136 Wn.2d 405, 963 P.2d 818 (1998). A 43-year-old lawyer represented a 23-year-old woman following a motorcycle accident in which she was severely injured. He successfully secured a guardian ad litem for her, in the petition for which he asserted that she was incompetent due to severe head injuries, was disabled, and was incapable of caring for herself or her affairs.

After noting that Washington's RPCs did not at the time expressly ban a lawyer from having a sexual relationship with a client, the court referenced its prior decision in Haley v. Medical Disciplinary Board, 117 Wn.2d 720, 818 P.2d 1062 (1991). In that case, the court suspended a 66-year-old surgeon from medical practice for having a sexual relationship with an under age-16 former patient. According to Heard (at 421), Haley held that the surgeon "used his professional status and position to sexually exploit a minor, given his psychological authority and power over the patient, and his behavior cast the medical profession in disrepute in the eyes of the public." Although a disciplinary rule for physicians specifically prohibited sexual contact with a patient, the rule was not violated because the physician-patient relationship had ended when the sexual relationship began. Thus, the Heard court concluded (at 422):

Haley indicates a professional may violate rules banning acts of moral turpitude even where specific rules forbidding sex with clients do not apply. As we stated in Haley: "[w]e believe that any reasonable physician would recognize that such conduct is an abuse of the trust inherent in the physician's role and an appropriate subject for professional discipline." Id. at 743. The same can be said of Heard's conduct here.

The court then went on (at 422-423) to detail Heard's conduct:

The facts in the present case are quite similar to those in Haley, and may be more egregious in several respects. Heard used his professional relationship with Menz to initiate the social relationship. …As Menz's attorney, Heard had intimate knowledge of her vulnerabilities. Heard knew Menz had sustained a significant head injury for which she required multiple surgeries, and she was psychologically and physically impaired, undergoing a period of prolonged rehabilitation. Through access to her medical records, Heard knew Menz had an extensive history of alcohol and drug problems, and had been sexually abused. He further knew that as a result of her brain injury Menz continued to have memory, reading comprehension, auditory processing, attention, speech, problem solving and other cognitive deficits. He also knew her medical providers were concerned about her judgment, safety and ability to live independently. Despite this knowledge, Heard took Menz to two cocktail lounges and gave her alcoholic beverages at both. When Menz informed Heard she should not be drinking, he assured her that everything would be all right. Heard then took Menz to his apartment where they engaged in sexual relations. Heard sexually exploited a client with alcohol problems and who suffered the effects of serious head injuries. Heard's use of his professional position to exploit a vulnerable young [422/423] woman constituted moral turpitude within the meaning of RLD 1.1. [citation to Footnote 9]

In footnote 9, the court observed:

By our opinion, however, we do not announce a general rule regarding attorney-client sexual conduct. This issue may be addressed in the normal course of the judicial rulemaking or decision[-]making process. However, where an attorney so blatantly misuses his professional status to exploit a client's vulnerability, the [Disciplinary] Board is entirely justified in finding the conduct to be an act of moral turpitude under RLD 1.1.

In another sex-with-vulnerable-client case, a married lawyer stipulated to discipline for, among other things, entering into a sexual relationship with a severely depressed client, marrying that client while he was still married to his wife, and making false statements and creating false documents attempting to conceal his bigamy. In re Warner, disciplinary notice published in Washington State Bar News, February 2000, p. 53. The respondent lawyer, who was represented by an experienced former disciplinary counsel, stipulated that his conduct violated RPC 1.7(b) (conflicts), 8.4(b) (by bigamy) and 8.4(c) (dishonest conduct), and that it constituted an act of moral turpitude. The presumptive disbarment sanction was mitigated down to a two-year suspension, together with various ancillary sanctions, due to significant mitigating factors.

More recently, in In re Halverson, 140 Wn.2d 475 (2000), the Washington Supreme Court held that a sexual relationship between an experienced family-law lawyer and his client did not, under the circumstances of the case, involve moral turpitude. Finding that the case before it did not involve any of the aggravating factors present in Heard, the Court, quoting from the Heard decision, observed that the lawyer here did not "blatantly misuse [ ] his professional status to exploit [his] client's vulnerability." Wn.2d at 140, 491. The Court also distinguished the case before it from two cases involving other professions which were both subject to statutory "bright-line" prohibitions on entering sexual relationships with persons served by the professional. In Haley, discussed above, a surgeon began a sexual relationship with an underage recent former patient, while in Heinmiller v. Dept. of Health, 127 Wn.2d 595 903 P.2d 433 (1995), a social worker began a sexual relationship with a client one day after concluding a counseling relationship. Even though the applicable "bright-line" statutes prohibited such relationships only during the period of the professional relationships, the conduct of each professional was held to be an act of moral turpitude. Halverson observed that in those cases there was a bright-line prohibition on sexual relationships with a client, even though the prohibition did not by its terms directly apply, whereas at the time of the events in Halverson, there was no bright-line rule in Washington prohibiting lawyer-client sexual relationships. (Seven weeks after the Halverson decision, the court adopted such a bright-line prohibition. RPC 1.8(k).) Although not finding moral turpitude in Halverson, the court did find that the lawyer's concurrent client/sexual relationship resulted in a conflict of interest in violation of RPC 1.7(b), and that the lawyer failed to exercise independent professional judgment in violation of RPC 2.1. The court suspended the lawyer from practice for one year, thus disciplining him for arguably "private" conduct having a nexus to the practice of law.

Heard, Warner and Halverson all involved sexual relationships between lawyers and clients, while Haley and Heinmiller involved sexual relationships with immediately past patients. In today's generally permissive climate, no sanction would have resulted had such relationships been with persons who had never been clients or not otherwise somehow professionally related to the professional (as, for example, a judge, opposing client or counsel, or witness) since such relationships, even though perhaps adulterous, are generally no longer criminal nor widely viewed as constituting acts of moral turpitude. This is true even though such acts, where adulterous, may raise serious questions about a person's truthfulness and honesty. As a profession, we have in effect determined that such conduct is private conduct not subject to Big Brother's oversight. Unanswered is whether such a determination encourages such behavior and whether the role of the community as envisioned by Aristotle, as encouraging and enforcing the highest moral development of its members, is being satisfied by our determination.

The court suspended a lawyer from practice for committing welfare fraud that began while in law school and continued after his admission to the bar. In re Plumb, 126 Wn.2d 334, 892 P.2d 739 (1995). After being re-admitted on completion of his suspension, the lawyer was subsequently disbarred in March 2000, for other fraudulent conduct mostly unrelated to his practice of law. Holding that welfare fraud is a crime of dishonesty reflecting adversely on the lawyer's fitness to practice law, the court found that the lawyer's failure to disclose his employment status while receiving welfare benefits showed a disregard for his legal obligations under the welfare program and a repeated failure to pay attention to important details, and that competent lawyering requires the opposite characteristics. The court determined that a compelling nexus existed between the lawyer's crime of dishonesty and unfitness to practice. The sanction in the case likely would have been the presumptive sanction under the ABA Standards of disbarment, except for the fact that disciplinary counsel apparently felt compelled to seek a lower sanction in light of several prior stipulated disciplinary suspensions by other lawyers, one involving a lawyer's failure to disclose the existence of an asset while declaring bankruptcy (two-year suspension), and the other involving a government attorney's fraud in charging extensive personal telephone calls to the government (one-year suspension).

Last year, the Washington Supreme Court again disciplined a lawyer for "private" conduct, in this case disbarring a lawyer for defrauding a magazine publisher and consumers of $825,000 through tele-marketing magazine subscription renewals and repeated misrepresentations. In re Huddleston, 137 Wn.2d 560, 974 P.2d 325 (1999). Rejecting the lawyer's claim that the presumptive disbarment sanction should be mitigated since the conduct was "completely outside the practice of law," the court observed (at 577-579):

It is clear that Washington attorneys can be sanctioned for misconduct occurring outside the practice of law. Attorneys in Washington are subject to the Rules of Professional Conduct at all times, regardless of whether they are acting as an attorney at the time of the alleged misconduct. The Rules of Lawyer Discipline specifically provide that a lawyer may be subjected to discipline for [577/578]:

The commission of any act involving moral turpitude, dishonesty, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise. …

RLD 1.1(a) (emphasis added [by the court]). In the past, we have not hesitated to impose appropriate sanctions upon attorneys engaging in misconduct outside the practice of law, provided that such conduct reflected adversely upon that attorney's ability to practice law. Curran, 115 Wn.2d 747 (1990) (vehicular homicide); Plumb, 126 Wn.2d 334 (1995) (theft).

After reviewing the Rules of Professional Conduct, we conclude that the fact that the attorney misconduct occurs outside the practice of law is not a relevant mitigating factor. Attorney misconduct occurring outside the practice of law is, realistically, only subject to discipline under RPC 8.4 [footnote omitted]. Under the language of RPC 8.4, however, only the following conduct potentially occurring outside the practice of law can be subject to discipline: criminal acts that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and conduct or statements implying an ability to improperly influence government agencies or officials. RPC 8.4(b), (c), (d), (e). This kind of misconduct is serious and reflects adversely on an attorney's fitness to practice law, even if the misconduct occurs outside the practice of law. By including such conduct within the Rules of Professional Conduct, alongside rules governing misconduct related to the practice of law, we have demonstrated our concern for certain types of misconduct that may occur outside the practice of law. Nothing in the Rules of Professional Conduct nor the ABA Standards indicates an intent to treat such conduct less [578/579] seriously because it occurred outside the practice of law. … We are therefore unconvinced that lesser sanctions are appropriate when the alleged misconduct occurs outside the practice of law. [Footnote omitted]

In a recent Washington judicial discipline case, a judge in effect sought sanctuary by claiming his misconduct was "private" conduct even though the conduct took place in open session in a courtroom. In re Raines (Washington Judicial Conduct Commission, No. 98-2810-F-72). While presiding during a busy municipal court session, the judge was handed a note by a court employee requesting a short recess on behalf of an attorney. The judge allowed the recess without leaving the bench. Later, the employee, at the judge's direction, returned to the attorney the note on which the judge had written the words "No!" and "For the next time," and had drawn a person "giving the finger." Although the Commission found a violation of various judicial conduct canons, it did not impose discipline. An unpublished Commission concurring opinion noted that the judge "insisted that his behavior was 'private.' His conduct occurred on the bench while court was in open session. … Mingling a private activity with judicial functions, whether the act transpired inside or outside of the courtroom, is not private, especially when misconduct is involved."

Washington lawyers have not limited their "private" misconduct merely to violence, money and sex. Other reported Washington cases, however, are older, predating Washington's adoption of the RPCs. They include:^[2]

• the strange case of Mr. Kosher, whom the court found "actively participated in: 1) the establishment of houses of prostitution, 2) the securing of women essential to their operation, 3) the direction of some 'customers' to the brothels, and 4) the collection and apparent sharing in an overhead fee (which could be referred to as a protection or organization fee). There can be no doubt that the aforementioned activities of Mr. Kosher involved moral turpitude." In re Kosher, 61 Wn.2d 206, 209, 377 P.2d 988 (1963);

• filing false tax returns. In re Greiner, 61 Wn.2d 306, 378 P.2d 456 (1963); In re Witteman, 95 Wn.2d 936, 631 P.2d 961 (1981); and In re Brown, 97 Wn.2d 273, 644 P.2d 669 (1982);

• conspiring to deprive persons of civil rights (Watergate plumbers). In re Krogh, 85 Wn.2d 462, 536 P.2d 578 (1975);

• sending false recommendation letters and transcripts to prospective employers. In re Lavery, 90 Wn.2d 463, 587 P.2d 157 (1978);

• growing large amount of marijuana (no criminal conviction because evidence suppressed). In re Fortun, 97 Wn.2d 240, 643 P.2d 447 (1982);

• misdemeanor shoplifting as involving moral turpitude. In re Saulnier, 97 Wn.2d 676, 648 P.2d 433 (1982);

• passing not-sufficient-funds checks and forged checks. In re Barnard, 59 Wn.2d 912, 367 P.2d 26 (1961); and

• obtaining chips at Nevada gambling casinos with cashier checks on which the lawyer intended to stop payment. In re Miller, 99 Wn.2d 695, 663 P.2d 1342 (1983).

Should a lawyer be subject to discipline for "private" conduct? It depends. While there can never be a fixed answer, since what is public and what is private inevitably overlap and change as society changes and as society's needs, apprehensions and priorities change, there also is a continuing need for personal and professional accountability.

Ancient writers long ago laid the groundwork for analyzing ethical behavior, a groundwork that was founded on a unified concept of human conduct, with man and woman being responsible and accountable for all their acts, not just those that directly affected others in society, and certainly not just those related to their particular livelihood. Over the years we have sought to narrow that accountability for our conduct by developing concepts of "public" versus "private" conduct, by developing a concept of sanctuary, of some place where we are free of intrusions from others. As we fear government, as we fear the loss of personal autonomy and of privacy, we naturally seek to erect barricades behind which we can be ourselves without regard to intrusions by others.

In earlier legal ethics codes, the concept of moral turpitude was used as one measure of the conduct, beyond the directly professional, for which we lawyers were to be held accountable. The ABA Model Rules of Professional Conduct abandoned the concept, however, choosing an avowedly bifurcated view of lawyer conduct, holding, as it were, a lawyer's feet to the fire only for "public" conduct and a very narrow range of private conduct evidencing certain failures of character traits which were deemed to be directly related to the practice of law. No longer were the concepts of ethical lawyer and moral person synonymous, if they ever were, or even compatible, for under the new approach a lawyer might well be an "ethical lawyer" but viewed by the public as immoral.

Admittedly, the concept of "moral turpitude" is not easy to apply. To some, it appears too vague and uncertain, too susceptible to passing whims of those in control, or to political expediency. When the term "moral turpitude" is uttered, it seems to be spit out, to hang in the air and linger, seemingly infecting all that it touches, drawing up visions of a sanctimonious and narrow-minded person self-righteously berating a pathetic down-at-the-heals loser for the most beastly, repellant, anti-social and deviant behavior. And yet, the concept can remain wonderfully flexible and responsive to the changing needs of society to identify certain conduct which, even though not clearly delineated in advance, all members of society should understand will simply not be tolerated by a member of a privileged profession. It is a term fraught with meaning, even though that meaning may not always be amenable to precise advance statement. It is a multi-leveled term that conveys layers of meaning, that seeks to preserve certain core social values. The inability to precisely define it gives it flexibility to live in particular fact situations previously unanticipated. While vague, it conveys meaning as surely as King Lear's (Shakespeare, King Lear, Act II, Scene iv, lines 282-284) impassioned howl of rage, suffering, pain and frustration:

I will do such things,
What they are, yet I know not, but they shall be
The terrors of the earth.

And, despite the apprehension felt by some in using the term "moral turpitude," most bars and courts regularly welcome moral turpitude's first cousin, the concept of "good moral character." Washington's Admission to Practice Rules 3(a) and 5(a), for example, require applicants for admission to the bar to be of "good moral character." If an applicant to the bar is required to be of good moral character to become a lawyer, is it so illogical to conclude that conduct which evidences a lack of good moral character should subject a lawyer to discipline?

Should a lawyer be subject to discipline for "private" conduct? Lawyers today often bemoan a lack of meaning in their professional lives, complaining that what they do as professionals is not fulfilling or does not meet their personal needs for creativity and completeness. Some lawyers see no inconsistency in themselves engaging in personally abusive behavior to opposing counsel, parties and witnesses, and even their own partners and staff, justifying it under the rubric of zealous advocacy, while bemoaning the decline of the legal profession. Others may lead sterling public-professional lives yet personally abuse their families, leaving them to lead lives of quiet desperation. But, if lawyers want to feel whole and complete, they need to be whole and complete. They cannot be so if they insist on dividing themselves into parts, one increasingly small portion of which is accountable to others, the other portion of which is claimed to be off bounds to others. Aristotle, Plato, and other ancient writers understood that our very essence is social and that by separating ourselves from society we destroy what is at the core of our being.

Should a lawyer be subject to discipline for "private" conduct? Lawyers regulate themselves more comprehensively than most other professions, and are far more accountable for their actions than is the general unregulated public. As fiduciaries and officers of the court, this is both expected and demanded of them. Lawyers, believing in a rule of law, also in fact overwhelmingly meet their ethical and legal obligations. Only rarely, for example, do they violate such bedrock ethical principles as their duty to maintain confidences and secrets, recognizing that confidentiality is as fundamental to a lawyer's ability to serve the public as it is to a pastor's ability to minister to a penitent. Law is a noble profession because for generations lawyers have courageously lived their professional beliefs in a rule of law even when doing so was not popular with the general public. Because so much is expected and demanded of lawyers, they are judged by the public not only on what they do as lawyers, but also on the principles and standards they proclaim. To a large extent, the role of a lawyer is to hold people accountable to one another for their conduct, and thus it is wholly appropriate that the public demands that lawyers themselves be accountable to it.

If we lawyers, however, seek professional sanctuary from public accountability in the concept of "private" conduct, we should remember that by doing so our world then shrinks down to the small compass of that sanctuary. We then lose meaning in the larger world and essentially become irrelevant to it. As a legal profession, we need to ask whether that is not the course we are now following by our self-protective narrow definitions of ethical accountability and responsibility. Are we seeking ethical sanctuary from the public and from our own consciences by limiting our ethical duties just as Demosthenes sought sanctuary in the temple of Poseiden from the pursuing army? We should remember that, fearing the public outside the sanctuary, and fearing that the sanctuary would not be honored, Demosthenes ultimately chose to kill himself.

Are we as a profession committing ethical suicide by our attempts to limit our professional responsibility to only an ever-shrinking world of self-designated "public" conduct? If we want to regain the public's and our own self respect, if we want to feel whole as persons, we need to embrace full accountability for our entire lives, not just of disjointed segments. If we do not, we as a profession, fearing and fleeing accountability, will sadly be able to apply to ourselves and to our profession T. S. Eliot's lines from The Love Song of J. Alfred Prufrock:

I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and snicker,
And in short, I was afraid.

NOTES

1. The Scope section states: "The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations."

2. I thank my colleague Randy Beitel for gathering these reported cases.

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