June 2006

Ethics and the Law:

Do the Crime, Do the Time. But Lose Your License?

by Sachia Stonefeld Powell

What kind of criminal conduct by a lawyer results in discipline? Can a lawyer be disciplined for crimes committed in his/her private life? And what happens if there is no criminal conviction? The Office of Disciplinary Counsel routinely addresses criminal conduct by lawyers, ranging from driving under the influence (DUI) to money laundering. Lawyers can be confused as to how criminal conduct may intersect with discipline. This article will give a brief overview of some of the factors that may determine the effect of criminal conduct on a license to practice law.

Criminal Conduct May Violate the Rules of Professional Conduct

Rule 8.4(b) of the Rules of Professional Conduct (RPC) prohibits criminal acts that reflect adversely on the lawyer's "honesty, trustworthiness or fitness as a lawyer in other respects." Lawyers violate this rule most commonly by committing crimes of veracity (e.g., theft or forgery) and crimes prejudicing the justice system (e.g., perjury or witness tampering). However, lawyers have violated RPC 8.4(b) by pushing a client or by engaging in disorderly conduct, among other things.1

Other types of criminal conduct may be prohibited by RPC 8.4(i).2 This rule prohibits the commission of any act involving moral turpitude, or corruption, or any unjustified act of assault or other act that reflects disregard for the rule of law. The Washington State Supreme Court has made it clear that whether an act involves "moral turpitude" must be determined by the individual facts of each case. (In re Disciplinary Proceeding Against McGrath, 98 Wn.2d 337, 655 P.2d 232 (1982).) However, the Court has provided guidance, indicating that it will look at the inherent nature of the act committed by the lawyer to answer the following question: "[D]o the acts found against the [lawyer], and for which he was convicted . . . , violate the commonly accepted standard of good morals, honesty, and justice?" (In re Disciplinary Proceeding Against Heard, 136 Wn.2d 405, 418, 963 P.2d 818 (1998) (quoting In re Disciplinary Proceeding Against Hopkins, 54 Wn. 569, 572, 103 P. 805 (1909).)

The Court has also provided guidance to interpret RPC 8.4(i)'s prohibition on conduct "which reflects disregard for the rule of law." (In re Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 801 P.2d 962 (1990).) In Curran, the Court held that whether criminal conduct violates this provision turns on the consideration of two factors: 1) the frequency of the violation, and 2) the seriousness of the injury caused. Curran was convicted of vehicular homicide. Although he had no history of driving offenses, his actions resulted in the deaths of two of his three clients/passengers. Consequently, Curran's conviction warranted a six-month suspension3 because his willingness to risk causing death or serious injury by driving a vehicle after consuming at least three drinks reflected disregard for the rule of law. (115 Wn.2d at 763.)

For purposes of discipline, it is not necessary that the crime be a felony, or even that there be a conviction.4 Additionally, assisting another in criminal activity may result in discipline, as may an attempt to commit a crime. (RPC 8.4(a) & (f).)

Even "Private" Conduct May Impact Your Law License

A crime committed outside the course of one's conduct as a lawyer may result in discipline. (See, RPC 8.4(i).) Lawyers have been disciplined for criminal conduct unrelated to the practice of law. This conduct has included driving offenses such as attempting to elude a pursuing police officer or driving under the influence, drug offenses such as growing marijuana plants or presenting a false prescription, misrepresentations including false statements in a personal bankruptcy or tax evasion, bigamy, possession of child pornography, sexual assaults, using a deadly weapon to threaten someone, and shoplifting. Consequently, lawyers should not assume that the commission of crimes in their "private" lives, even if completely unrelated to their law practice, will be exempt from discipline.

The Severity of the Sanction Depends on the Nature of the Crime

Conviction of a felony does not automatically result in disbarment. Instead, disbarment is the presumptive sanction5 for conduct involving: "[I]ntentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or [ . . . ] any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."6 Consequently, lawyers have been disbarred for conduct such as forging the name of a deceased person and then notarizing the signature, giving false testimony, theft of client funds, and various acts of fraud.

Interim Suspension for Commission of a Crime

Conviction of a felony may not necessarily result in disbarment, but a felony conviction will result in immediate interim suspension from the practice of law during the pendency of the disciplinary proceeding. (Rule 7.1 of the Rules for Enforcement of Lawyer Conduct (ELC).) Conviction of any other "serious crime"7 may also result in an interim suspension. (ELC 7.1(e).)

Like most allegations of ethical misconduct, the analysis of allegations of criminal conduct is very fact-specific. This makes it difficult to predict what the impact of any given conduct will be on a law license. Of course, the easiest way to avoid discipline based on criminal conduct is to avoid the criminal conduct in the first place. 

NOTES
 
1. The examples of criminal conduct contained in this article are based on public discipline. Information regarding the specific criminal conduct and resulting discipline can be found by searching the Disciplinary Notices on the WSBA website at pro.wsba.org and selecting "Discipline Notices," or by contacting the Office of Disciplinary Counsel.
 
2. Depending on the specific conduct, several other of the RPCs may also be implicated.  See, e.g.,  RPC 8.1 (prohibiting a false statement of material fact, or failure to disclose necessary information, on bar application), RPC 8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), RPC 8.4(d) (prohibiting conduct prejudicial to the administration of justice), and RPC 8.4(n) (prohibiting conduct demonstrating unfitness to practice law). 
 
3. The Court found that the presumptive sanction was a two-year suspension, but mitigated the length of suspension to six months in light of the 18 months Curran had already spent on interim suspension. 
4. RPC 8.4(i). If there is a conviction, Rule 10.14(c) of the Rules for Enforcement of Lawyer Conduct (ELC) provides that "the court record of the conviction is conclusive evidence at the disciplinary hearing of the respondent's guilt of the crime and violation of the statute on which the conviction was based."  If there is no conviction, the Association must prove the conduct by a clear preponderance of the evidence, and not by evidence beyond a reasonable doubt. In re Disciplinary Proceeding Against Huddleston, 137 Wn.2d 560, 570, n.6, 974 P.2d 325 (1999).
 
5. The presumptive sanction may be altered by aggravating or mitigating factors. In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998). 
 
6. American Bar Association's Standards for Imposing Lawyer Sanctions (1991 ed. & Feb. 1992 Supp.) (ABA Standards) 5.11. The Court has approved the application of the ABA Standards to determine the appropriate sanction.  In re Disciplinary Proceeding Against Rentel, 107 Wash.2d 276, 729 P.2d 615 (1986).
 
7. ELC 7.1(a)(2). A "serious crime" is any felony, or any other crime a necessary element of which is interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or any attempt, or a conspiracy, or solicitation of another, to commit a serious crime.