MRPC 8.1-8.4: DISCIPLINE

Question 1

What does Rule 8.1 say?

Answer 1

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Question 2

True or false: Rule 8.1 applies to lawyers, not law students.

Answer 2

False. 8.1: AN APPLICANT FOR ADMISSION TO THE BAR or a lawyer in connection with a bar admission application or in connection with a disciplinary matter

8.1[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as to lawyers.

Question 3

How does Rule 1.6 interplay with Rule 8.1?

Answer 3

Rule 1.6: Client-Lawyer Relationship
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) (exceptions)

(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Rule 8.1: Discipline
this rule does not require disclosure of information otherwise protected by Rule 1.6.

Question 4

True or false: It is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct.

Answer 4

True. 8.1 [1]

Question 5

Would a law student applying for bar admission be subject to discipline if s/he misrepresented themselves on their law school applications and failed to correct?

Answer 5

YES! 8.1[1]

Paragraph (b) of this Rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.

Question 6

How does Rule 8.1 relate to the Fifth Amendment?

Answer 6

[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this Rule.

Question 7

What does Rule 8.3(a) say?

Answer 7

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Lawyer tattle-tale rule

Question 8

What does Rule 8.3(b) say?

Answer 8

A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

Judge tattle-tale rule

Question 9

What does rule 8.3(c) say?

Answer 9

This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Question 10

Is an isolated incident on the part of a lawyer or a judge tattle-worthy under Rule 8.3(a) or (b)?

Answer 10

An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.

Question 11

When is it especially important to report misconduct under 8.3(a) or (b)?

Answer 11

[1] Reporting a violation is especially important where the victim is unlikely to discover the offense.

Question 12

When would it be appropriate not to report misconduct under Rule 8.3(a) or (b)? How would a lawyer navigate?

Answer 12

[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.

Question 13

What does Rule 8.3(c) say?

Answer 13

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Question 14

Does a lawyer have to report every misconduct from another lawyer or judge (or on his own part) in every single case?

Answer 14

8.3[3]
If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable.

This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.

A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

Question 15

If a lawyer does want to report misconduct, how should s/he do so?

Answer 15

8.3 [2] A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

Question 16

In participating in an assistance program, a lawyer discloses that he’s been involved in misconduct. Should that be reported?

Answer 16

No. 8.3[5]
Information about a lawyer’s or judge’s misconduct or fitness may be received by a lawyer in the course of that lawyer’s participation in an approved lawyers or judges assistance program.

In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance.

Question 17

What does Rule 8.4 say?

Answer 17

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 to achieve results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Question 18

Does Rule 8.4(g) limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16?

Answer 18

No! 8.4(g) This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Question 19

Does Rule 8.4(a) prohibit a lawyer from advising a client concerning action the client is legally entitled to take?

Answer 19

8.4[1] NO.

Question 20

In what circumstances should a lawyer be professionably answerable and when is it more of a persona problem vs. profession?

Answer 20

8.4
[2] 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.

Question 21

For the purposes of 8.4, what does “conduct related to the practice of law” mean?

Answer 21

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

Question 22

When is a lawyer in a position where he does not violate Rule 8.4(g)?

Answer 22

[5] A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law.

Question 23

Do lawyers holding public office assume legal responsibilities going beyond those of other citizens?

Answer 23

Yes. 8.4[7]
[7] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.