Professional Discipline and Enforcement - June 2 & 8

Question 1

If a lawyer is disciplined by a bar association or other body for violating the rules of professional conduct, does that discipline typically include an award of damages in favor of a client who was harmed by the lawyer’s actions? (Q)

Answer 1

No. Professional discipline of lawyers under the rules of professional conduct typically does not include an award of damages in favor of a client who was harmed by the lawyer’s actions, although restitution is sometimes ordered as part of a disciplinary proceeding. In general, professional discipline is a matter between the lawyer and the state bar authority or the courts, and not between the lawyer and the client. Thus, clients who seek to recover damages against their lawyers must look to the laws of malpractice or other civil liability, and not to the rules of professional conduct.

Question 2

What are the elements of a civil claim for professional negligence against a lawyer? (Q)

Answer 2

A lawyer will be civilly liable for professional negligence (1) to a client or other person to whom the lawyer owes a duty of care, (2) if the lawyer fails to exercise due care toward that person (i.e., breaches the duty of care), and (3) that failure is a legal cause of injury, (4) unless the lawyer has a defense. In general, the defenses available to a lawyer are the same defenses that apply elsewhere in the law of negligence.

Question 3

In general, is a lawyer considered to be a fiduciary of a client? (Q)

Answer 3

Yes. A lawyer is generally considered to be a fiduciary of a client. Thus, the lawyer has a range of fiduciary duties toward a client, including competence, confidentiality, diligence, honesty, and loyalty in the handling of the client’s affairs.

Question 4

In addition to professional-negligence liability, is a lawyer subject to civil liability to a client for breach of a fiduciary duty? (Q)

Answer 4

Yes. In addition to professional-negligence liability, a lawyer is civilly liable to a client for breach of fiduciary duty if (1) the lawyer breaches a fiduciary duty to the client, and (2) that failure is a legal cause of the client’s injury, (3) unless the lawyer has a defense. In general, the defenses available to a lawyer are the same defenses that apply elsewhere in the law of fiduciary duty.

Depending on the law in a particular jurisdiction, a claim for a lawyer’s breach of fiduciary duty will often overlap factually and legally with a claim for professional negligence. Likewise, the requirements of proof and the allowable damages may overlap substantially.

Question 5

Are both professional-negligence claims and fiduciary-breach claims types of legal-malpractice claims? (Q)

Answer 5

Yes. The term legal malpractice encompasses both professional-negligence claims and fiduciary-breach claims against a lawyer. This collective term is often used in discussing proof, causation, and damages in light of the frequently substantial overlap between these two theories of malpractice.

Question 6

Is a lawyer generally liable for malpractice if she reasonably believed that her actions were required by law or by a rule of professional conduct? (Q)

Answer 6

No. A lawyer generally is not liable for malpractice if she reasonably believed that her actions were required by law or by a rule of professional conduct. In other words, this reasonable belief is a complete defense to a plaintiff’s malpractice claim. This special defense applies in addition to the defenses generally available in the law of negligence or fiduciary duty.

Question 7

In the context of a lawyer’s professional negligence, what standard of care is required to satisfy the lawyer’s duty to the client? (Q)

Answer 7

Under the professional-negligence standard of care, a lawyer must (1) deploy the competence and diligence normally used by lawyers in similar circumstances (2) to pursue the client’s lawful objectives within the scope of the representation.

Question 8

In evaluating whether a lawyer has acted competently as required by the professional-negligence standard of care, will a court essentially ask whether the lawyer has acted reasonably under the circumstances? (Q)

Answer 8

Yes. In evaluating whether a lawyer has acted competently as required by the professional-negligence standard of care, the fundamental question is whether the lawyer has acted reasonably under the circumstances. Some of the most important factors in assessing reasonableness in this context are:

time pressures within the representation,

whether the law or the facts are uncertain,

the possibility that competent lawyers may choose different methods to accomplish the same goal, and

the fact that not all representations succeed in achieving the client’s goals.

Question 9

In evaluating whether a lawyer has acted diligently as required by the professional-negligence standard of care, will a court essentially ask whether the lawyer has acted reasonably under the circumstances? (Q)

Answer 9

Yes. In evaluating whether a lawyer has acted diligently as required by the professional-negligence standard of care, the fundamental question is whether the lawyer has acted reasonably under the circumstances. Some of the most important factors in assessing reasonableness in this context are:

the scope of the representation,

the client’s instructions to to the lawyer,

the importance of the matter to the client,

the cost of undertaking particular activities within the representation, and

the time available within the representation.

Question 10

In evaluating whether a lawyer has complied with the professional-negligence standard of care, will a court generally compare the lawyer’s actions to those of other lawyers in the state in which the lawyer practices? (Q)

Answer 10

Yes. In evaluating whether a lawyer has complied with the professional-negligence standard of care, a court will generally compare the lawyer’s actions to those of other lawyers within the state in which the lawyer practices, as opposed to those within the lawyer’s more immediate locality. However, a lawyer may sometimes be held to a national standard if a national practice exists in the relevant field, e.g., federal litigation or patent law.

Question 11

May a lawyer’s assertions or disclaimers of expertise or ability affect the standard of care applicable to the lawyer’s conduct? (Q)

Answer 11

Yes. The standard of care applicable to the lawyer’s conduct can be affected by the lawyer’s assertions or disclaimers of expertise or ability, which in turn shape the client’s reasonable expectations of the lawyer. A lawyer who holds herself out as an expert in a field of law, or as an especially capable or diligent lawyer, will usually be held to a higher standard of care than a lawyer who disclaims particular expertise or does not claim special ability.

Question 12

In general, does a lawyer breach the professional-negligence standard of care by following the lawful instructions of a properly informed client? (Q)

Answer 12

No. In general, a lawyer does not breach the professional-negligence standard of care by following the lawful instructions of a properly informed client. In other words, if the client understands the circumstances, risks, and rewards involved in a decision, the lawyer may follow the client’s instructions without fear of malpractice liability, even if the lawyer disagrees with the instructions.

Question 13

In general, must a plaintiff in a legal-malpractice action present expert testimony regarding the care required and the defendant’s breach in order to prove the plaintiff’s claim? (Q)

Answer 13

Yes. In general, a plaintiff in a legal-malpractice action must introduce expert testimony regarding the duty of care (or the relevant fiduciary duty) and the defendant’s breach in order to prove the claim. Expert testimony is usually required because in most cases, a jury, and perhaps a judge, will not be familiar with the applicable field of law and the usual conduct of lawyers in the relevant circumstances. However, expert testimony is not required if the defendant’s duty and breach would be apparent to a layperson without expert testimony.

Question 14

In general, does a lawyer’s violation of a statute regulating lawyer conduct or a rule of professional conduct give rise to an implied cause of action for malpractice? (Q)

Answer 14

No. In general, a lawyer’s violation of a statute regulating lawyer conduct or a rule of professional conduct does not give rise to an implied cause of action for malpractice. Instead, the plaintiff must establish the elements of duty and breach without relying solely on the statute or rule.

By contrast, some statutes that regulate lawyer conduct may expressly provide a cause of action for breach. Those causes of action are express, not implied, and thus are not affected by this general rule.

Question 15

In general, does proof of a lawyer’s violation of a statute regulating lawyer conduct or a rule of professional conduct preclude the plaintiff from offering other proof of the lawyer’s malpractice? (Q)

Answer 15

No. In general, proof of a lawyer’s violation of a statute regulating lawyer conduct or a rule of professional conduct does not preclude the plaintiff from offering other proof of the lawyer’s malpractice. In fact, additional proof will normally be required if the rule or statute does not by its terms give rise to a cause of action for breach.

Question 16

In general, under what circumstances may a trier of fact consider a lawyer’s violation of a statute regulating lawyer conduct or a rule of professional conduct in deciding whether a lawyer has committed malpractice? (Q)

Answer 16

In general, in deciding whether a lawyer has committed malpractice, a trier of fact may consider the lawyer’s violation of a statute or ethical rule if:

the statute or rule was designed to protect someone in the plaintiff’s position, and

proof of the content and interpretation of the statute or rule is relevant to the plaintiff’s claim.

The content and interpretation of the statute or rule might be relevant if they illustrate how lawyers in the relevant jurisdiction either do or should behave. In other words, the statute or rule may itself illustrate the relevant duty or standard of care and allow a comparison of that standard to the defendant’s conduct.

Question 17

In the context of professional-negligence liability, does a lawyer owe a duty of care to a prospective client? (Q)

Answer 17

Yes. A lawyer owes a duty of care to a prospective client (i.e., a person who consults with a lawyer about forming a client-lawyer relationship), even if that person never becomes an actual client. The lawyer’s standard of care in fulfilling this duty includes acting competently and diligently in observing the applicable rules of confidentiality and conflicts of interest, as well as in providing any legal advice or services to the prospective client notwithstanding the absence of a full client-lawyer relationship.

Question 18

In the context of professional-negligence liability, does a lawyer owe a duty of care to a former client? (Q)

Answer 18

Yes. A lawyer owes a duty of care to a former client. The lawyer’s standard of care in fulfilling this duty includes acting competently and diligently in appropriately returning papers and property to the former client, preserving confidentiality, and avoiding prohibited conflicts of interest.

Question 19

In general, are the elements of causation and damages in a legal-malpractice case governed by the relevant jurisdiction’s standard laws of causation and damages? (Q)

Answer 19

Yes. In general, the elements of causation and damages in a legal-malpractice case are governed by the relevant jurisdiction’s standard laws of causation and damages. These principles will often be enunciated in the tort or contract law of the relevant jurisdiction. However, a few special rules have evolved for situations unique to legal-malpractice claims.

Question 20

If a plaintiff in a legal-malpractice case alleges that but for the lawyer’s misconduct she would have obtained a more favorable judgment in a civil trial, must the plaintiff relitigate the trial evidence as part of the case against the lawyer? (Q)

Answer 20

Yes. If a plaintiff in a legal-malpractice case alleges that but for the lawyer’s misconduct she would have obtained a more favorable judgment in a civil trial, then the plaintiff must relitigate the evidence from the original trial as part of the case against the lawyer. In other words, the plaintiff must essentially retry the original case for the trier of fact in the malpractice action.

If the trier of fact in the malpractice action concludes based on this evidence that the lawyer’s malpractice caused the plaintiff to receive a different or lesser judgment than she should have, then the plaintiff may recover the difference between the amount actually obtained and the amount the plaintiff would have obtained but for the lawyer’s fault.

Question 21

If a plaintiff in a legal-malpractice case recovers against a lawyer for the loss of a more favorable judgment in a prior case, may the lawyer always deduct the lawyer’s fees in the prior case from the award in the malpractice case? (Q)

Answer 21

No. If a plaintiff in a malpractice case recovers against a lawyer for the loss of a more favorable judgment in a prior case, the lawyer may sometimes, but not always, deduct the lawyer’s fees in the prior case from the malpractice award. A lawyer who has clearly violated a duty to the client and caused serious harm might be required to forfeit some or all of the fees incurred in rendering the inadequate representation. This would prevent the lawyer from deducting the lawyer’s fees from a later malpractice award.

Whether fee forfeiture is required will depend on factors including:

the egregiousness of the lawyer’s malpractice,

the importance of the matter to the plaintiff,

the magnitude of the harm to the plaintiff,

whether the plaintiff gained any benefit from the lawyer’s representation, and

the adequacy of other remedies to compensate the plaintiff.

Question 22

In general, does a client who has been convicted of a crime have a cause of action against his lawyer if, but for the lawyer’s malpractice, the client would not have been convicted? (Q)

Answer 22

Yes. In general, a convicted criminal defendant has a cause of action against his lawyer if, but for the lawyer’s malpractice, the defendant would not have been convicted. Most jurisdictions require proof that the client was actually innocent of the crime to support this type of malpractice action, though the Restatement (Third) of the Law Governing Lawyers does not require proof of the convicted defendant’s innocence. In addition, in many jurisdictions the defendant must first have the conviction set aside on direct appeal or by collateral attack before bringing a malpractice claim.

Question 23

In addition to malpractice liability, is a lawyer subject to liability under the normal contract-law principles governing breach of contract in an appropriate case? (Q)

Answer 23

Yes. A lawyer is subject to liability for breach of contract under normal contract-law principles in an appropriate case. Thus, contract law provides a source of lawyer liability in addition to the malpractice claims of professional negligence and breach of fiduciary duty.

Question 24

In holding a lawyer liable for malpractice, may a court generally award equitable remedies instead of, or in addition to, money damages? (Q)

Answer 24

Yes. In holding a lawyer liable for malpractice, a court generally may award equitable remedies instead of, or in addition to, money damages. A court generally may award whatever remedies are provided for under the general law of remedies in the relevant jurisdiction. Thus, in addition to money damages, a client may be able to recover restitution, declaratory relief, or injunctive relief, as warranted.

Question 25

In general, is a law firm vicariously liable for civil wrongs committed by its principals and employees acting in the ordinary course of the firm’s business? (Q)

Answer 25

Yes. In general, a law firm is vicariously liable for the civil wrongs of its principals and employees committed while acting in the ordinary course of the firm’s business. This is an application of the general rules of respondeat superior and enterprise liability to lawyers and their firms.

Question 26

In general, is a partner in a law firm that is organized as a general partnership personally liable for civil wrongs committed by the firm, its principals, or its employees? (Q)

Answer 26

Yes. In general, a partner in a law firm that is organized as a general partnership, as opposed to a limited-liability partnership, is jointly and severally liable for any acts for which the firm itself is liable, including malpractice. A principal in a law firm that is organized in some way other than as a general partnership is vicariously liable for wrongs committed by another principal or employee to the extent provided by the applicable law.

Question 27

A lawyer in a large firm represented the husband in a divorce. Another lawyer in the lawyer’s firm agreed to represent the wife in the same divorce. This clear conflict of interest was not detected due to a deficiency in the firm’s process for checking conflicts. The firm was organized as a general partnership, and both lawyers were partners in the firm. Neither lawyer was directly involved in establishing or administering the firm’s conflict-avoidance procedures. In the relevant jurisdiction, the firm’s failure to adequately monitor conflicts of interest was likely sufficient to establish civil liability for malpractice.

If the firm is liable for malpractice, will the parties’ lawyers be personally liable for malpractice, despite their lack of involvement in checking for conflicts of interest? (Q)

Answer 27

Yes. If the firm is liable for malpractice, the parties’ lawyers will be jointly and severally liable, as well. In a law firm organized as a general partnership, a partner in the firm is jointly and severally liable for civil wrongs committed by the firm. Malpractice is among the civil wrongs for which joint and several liability may be imposed.

Here, the lawyers’ firm probably committed malpractice by not having a proper conflict-avoidance system. Although the two lawyers were neither directly involved in nor directly responsible for this system, they are nonetheless partners in the firm, which is organized as a general partnership. Thus, the lawyers will be jointly and severally liable for any malpractice committed by the firm in the administration of its conflict-avoidance system.

Question 28

In general, if a lawyer assists a client in breaking or refusing to enter into a contract, can the lawyer be held liable for intentional interference with contractual relations? (Q)

Answer 28

No. In general, if a lawyer assists a client in breaking or refusing to enter into a contract, the lawyer cannot be held liable for intentional interference with contractual relations, provided that the lawyer is acting to fulfill the goals of the representation without using unlawful means. This rule recognizes that contracting parties need legal advice and assistance. It also recognizes that a refusal to perform might not be a breach, and that even an actionable breach of a contract might sometimes be legally defensible.

Question 29

In general, is a lawyer who initiates court proceedings to obtain criminal prosecution liable to a nonclient for malicious prosecution if the lawyer acts with probable cause and primarily for the purpose of bringing an offender to justice? (Q)

Answer 29

No. In general, a lawyer who initiates court proceedings to obtain criminal prosecution is not liable to a nonclient for malicious prosecution if the lawyer acts (1) with probable cause (i.e., if the lawyer has a reasonable belief that the facts underlying the claim can be proven satisfactorily and are sufficient to establish the validity of the claim) or (2) primarily for the purpose of bringing an offender to justice. The existence of probable cause and the lawyer’s motivation for obtaining prosecution are evaluated independently of the client’s motivation in the matter.

Question 30

In general, is a lawyer who initiates civil court proceedings liable to a nonclient for the wrongful use of civil litigation if the lawyer acts with probable cause or primarily to help the client obtain a proper resolution of the client’s civil claim? (Q)

Answer 30

No. In general, a lawyer who initiates court proceedings to obtain civil redress is not liable to a nonclient for the wrongful use of civil litigation if the lawyer acts (1) with probable cause (i.e., if the lawyer has a reasonable belief that the facts underlying the claim can be proven satisfactorily and are sufficient to establish the validity of the claim) or (2) primarily to help the client obtain a proper resolution of the client’s civil claim. The lawyer’s purpose of assisting the client in obtaining redress is evaluated independently of the client’s motivation in the matter.

Question 31

In general, is a lawyer subject to civil liability for publishing material about a nonclient in the course of a court proceeding? (Q)

Answer 31

No. In general, a lawyer is not liable to a nonclient for publishing material about the nonclient if:

the publication is made in communications about a reasonably anticipated court proceeding or during the course of a court proceeding,

the lawyer participates in that proceeding as a lawyer,
the material is published to someone who may be involved in the proceeding, and

the material is related to that proceeding.

This rule is designed to protect clients and the legal process from what might otherwise be a chilling effect on vigorous advocacy. Moreover, the rule recognizes that court rules, rules of professional conduct, and other controls exist to limit improper conduct by lawyers in litigation.

Question 32

Is the prospective limitation of legal-malpractice claims a favored practice? (Q)

Answer 32

No. The prospective limitation of legal-malpractice claims is highly disfavored. The MRPC provide that a lawyer may not agree with a client to prospectively limit the lawyer’s malpractice liability to that client unless the client has independent legal representation in making the agreement. Under the Restatement (Third) of the Law Governing Lawyers (Restatement), by contrast, any agreement prospectively limiting a lawyer’s malpractice liability is unenforceable.

Neither the MRPC nor the Restatement prohibit otherwise enforceable agreements to arbitrate legal-malpractice claims, so long as the client gives informed consent to the agreement.

Question 33

What restrictions do the MRPC place on a lawyer’s ability to settle legal-malpractice claims? (Q)

Answer 33

Under the MRPC, a lawyer may not settle an actual or potential legal-malpractice claim with an unrepresented client or former client unless that client is:

advised in writing of the desirability of having independent legal counsel and

given a reasonable time to obtain independent counsel.

This rule does not prohibit otherwise enforceable agreements to arbitrate legal-malpractice claims, so long as the client gives informed consent to the agreement.

Question 34

In what circumstances may a client or former client rescind a settlement agreement that was meant to resolve a malpractice claim against the client’s lawyer? (Q)

Answer 34

A client or former client may rescind a settlement that was meant to resolve a malpractice claim against the lawyer in two circumstances:

if the lawyer exerted improper pressure over the client or former client when reaching the settlement or

if the client or former client was not independently represented by counsel in negotiating the settlement, and the settlement terms are unfair or unreasonable to the client or former client.

Question 35

A client was unhappy with her former lawyer’s representation and filed a civil malpractice claim against the lawyer. Upon learning of the former client’s claim, the lawyer called the former client and offered to pay her $100,000. The former client quickly accepted. The lawyer then sent the former client a settlement document and a check for $100,000.

Has the lawyer engaged in professional misconduct? (Q)

Answer 35

Yes. The lawyer has engaged in professional misconduct. A lawyer may not settle a claim for malpractice liability with an unrepresented client or former client without first advising the client or former client, in writing, that it may be appropriate to obtain independent counsel to represent the client in the settlement negotiations.

Here, the lawyer entered into a settlement agreement with the former client concerning the former client’s malpractice claim against the lawyer. However, prior to entering the settlement agreement, the lawyer did not advise the former client in writing of the potential benefit of retaining independent counsel to represent the former client in the settlement negotiations. Thus, the lawyer has engaged in professional misconduct.

Question 36

In most states, are lawyers required to maintain malpractice insurance? (Q)

Answer 36

No. In most states, lawyers are not required to maintain malpractice insurance as a condition of practicing law. However, some states require that a lawyer provide a disclosure statement indicating whether the lawyer has malpractice insurance. In some states this disclosure must be made to clients, while in others the disclosure must be made to the state licensing authorities.

Question 37

Are lawyers permitted to obtain insurance to protect themselves from negligent conduct committed by themselves or by their agents? (Q)

Answer 37

Yes. Lawyers are permitted to obtain insurance to protect themselves from negligent conduct committed by themselves or by their agents. Typically, insurable conduct is limited to negligent conduct; willful actions are not coverable. It is against public policy to obtain insurance against liability for certain willful torts because this could encourage lawyers to engage in tortious behavior.

Additionally, a law firm and its principals may insure against vicarious liability (i.e., secondary liability imposed on a controlling party for acts done by a subordinate because of the relationship between principal and agent) arising from acts or omissions of a firm principal or employee or others. Insurance may also cover vicarious liability for some willful torts.

Question 38

A lawyer was a partner in a large law firm. The lawyer discovered that the firm had allowed its malpractice insurance to lapse. The state in which the firm had its practice did not require lawyers to maintain malpractice insurance.

As a principal of the firm, has the lawyer engaged in professional misconduct by allowing the firm’s malpractice insurance to lapse? (Q)

Answer 38

No. The lawyer has not engaged in professional misconduct by allowing the firm’s malpractice insurance to lapse. Lawyers and law firms are required to maintain malpractice insurance only if the state requires it. Although it is good practice to obtain malpractice insurance, and lawyers are permitted to obtain insurance to protect themselves from negligent conduct committed by the lawyers or by their agents, malpractice insurance is required only in very few states.

Here, although the law firm’s malpractice insurance had lapsed, the state in which the firm had its practice did not require lawyers to maintain malpractice insurance. Thus, the firm was not required to have malpractice insurance, and the lawyer has not engaged in professional misconduct by allowing the malpractice insurance to lapse.

Question 39

What are the Model Rules for Lawyer Disciplinary Enforcement? (Q)

Answer 39

The Model Rules for Lawyer Disciplinary Enforcement (MRLDE) are model rules promulgated by the ABA to provide a suggested regulatory and procedural framework for carrying out lawyer discipline. Like the MRPC, the MRLDE are models that the states may adopt, but they do not by themselves have the force of law.

Question 40

May a lawyer be formally disciplined for violating or attempting to violate a jurisdiction’s rules of professional conduct? (Q)

Answer 40

Yes. In general, a lawyer may be formally disciplined for violating or attempting to violate the jurisdiction’s rules of professional conduct. A lawyer also may be formally disciplined for:

violating another jurisdiction’s rules of professional conduct,

willfully violating a court order imposing discipline, or
failing to appear before or respond to an appropriate disciplinary authority in the course of a disciplinary proceeding.

Question 41

In general, what are the four steps in the process of disciplining an attorney for misconduct? (Q)

Answer 41

Disciplinary procedures vary slightly from state to state, but the general steps in the process of disciplining an attorney for misconduct are:

the state bar association or other disciplinary body learns of a potential ethical violation, whether through a complaint about the lawyer or through some other means;

the disciplinary body conducts an investigation;
the disciplinary body issues formal charges against the lawyer if the investigation shows that discipline may be warranted; and

the disciplinary body holds a hearing at which the complaining party or the disciplinary body must prove misconduct, often by clear and convincing evidence.
In most situations, a reviewing court may hear an appeal from the disciplinary decision.

Question 42

In the context of lawyer discipline, what are reprimands? (Q)

Answer 42

Reprimands are written admonishments from the bar association or other authority explaining the lawyer’s misconduct. Reprimands are among the least severe forms of attorney discipline.

A reprimand may be either private or public. A private reprimand, sometimes called an admonition, is provided only to the lawyer and placed on file with the state bar’s disciplinary department. A private reprimand may be considered in subsequent disciplinary proceedings, but it is not made public and does not impair the lawyer’s right to practice law in the disciplining jurisdiction. A public reprimand is made public, often through publication in a bar journal or elsewhere. A public reprimand likewise does not limit the lawyer’s ability to practice law in the disciplining jurisdiction.

Question 43

In the context of lawyer discipline, what is a suspension? (Q)

Answer 43

A suspension is a specified period of time during which a lawyer may not practice law in the disciplining jurisdiction. A lawyer’s suspension is generally made public by the disciplining jurisdiction, both to protect the general public and to deter misconduct by other lawyers.

Question 44

What is disbarment? (Q)

Answer 44

Disbarment is the complete and permanent revocation of a lawyer’s ability to practice law in the disciplining jurisdiction. A lawyer’s disbarment in one state can be considered in determining whether the lawyer is subsequently fit to practice law in another state. A lawyer’s disbarment is generally made public by the disciplining jurisdiction, both to protect the general public and to deter misconduct by other lawyers.

Question 45

What are the four most common forms of discipline for lawyer misconduct? (Q)

Answer 45

The four most common forms of discipline for lawyer misconduct are:

private reprimands (also called admonitions),
public reprimands,
suspensions, and
disbarments.

In addition to these forms of discipline, most jurisdictions have the power to impose other sanctions, such as requiring the lawyer to pay restitution to someone whom the lawyer harmed or placing the lawyer on a probationary license.

Question 46

Does a lawyer have a duty to respond truthfully to any inquiry in a disciplinary matter? (Q)

Answer 46

Yes. A lawyer in a disciplinary matter has a duty to respond truthfully truthfully to any inquiry. This means the lawyer may not:

knowingly make a false statement of material fact, whether by affirmative statement or by omission;

knowingly fail to respond to a lawful request for information; or

fail to disclose any fact necessary to correct a misimpression of fact that is known to the lawyer.

However, this rule does not require disclosure of information that is subject to lawyer-client confidentiality.

Question 47

Does a lawyer’s duty to respond truthfully to questions in a disciplinary matter supersede the lawyer’s privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution? (Q)

Answer 47

No. The requirement that a lawyer respond truthfully to questions in a disciplinary matter does not supersede the lawyer’s Fifth Amendment privilege against self-incrimination. However, a lawyer who relies on the Fifth Amendment in a disciplinary proceeding should openly assert her reliance and not use it as an after-the-fact excuse for failing to comply with the duty to respond truthfully.

Question 48

Is a lawyer who represents another lawyer in a disciplinary inquiry or proceeding governed by the confidentiality rules applicable to lawyer-client relationships? (Q)

Answer 48

Yes. A lawyer who represents another lawyer in a disciplinary inquiry or proceeding is governed by the rules applicable to lawyer-client relationships in general. This includes adhering to principles of lawyer-client confidentiality.

Question 49

Which model rule discusses misconduct and discipline? (Q)

Answer 49

Model rule 8.4.

Question 50

An attorney was a member of his state’s bar and was interested in buying a vacation home in another state. In order to get the property at a cheaper price, the attorney knowingly filed false financial and land records in the other state. When the attorney’s actions were discovered, he was convicted in the other state for knowingly filing false documents in connection with the purchase of real property.

Is the attorney subject to discipline? (Q)

Answer 50

Yes, because the attorney’s actions were dishonest. Under Model Rule 8.4(c), professional misconduct is any conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Here, knowingly filing the false documents clearly falls under this prohibition. Answer option A is incorrect because the Model Rules place no geographical limitations on actionable misconduct. Consequently, even though the conduct was in another state, the attorney could still be subjected to discipline from his home bar.

Question 51

An attorney was hired by a film company to investigate numerous sexual harassment allegations made by former employees. As part of the investigation, the attorney questioned one of the company’s vice presidents. The attorney falsely told the vice president that he was not a suspect and that anything he told her would be kept confidential. During the attorney’s questioning, the vice president admitted to several instances of harassment.

Is the attorney subject to discipline? (Q)

Answer 51

Yes, because the attorney misrepresented the nature of the interview that she was conducting with the vice president. Model Rule 8.4(c) states that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Here, the attorney was clearly violating the Model Rules by falsely telling the vice president that he was not a suspect and that his statements would be kept confidential.

Question 52

A partner at a law firm told the associates she supervised to add several hours to their clients’ bill statements to make up for some of the firm’s lost business. The partner planned on making it up to those clients by giving them a discount at a later date.

Is the partner subject to discipline? (Q)

Answer 52

Yes, because the partner told the associates to add hours to their clients’ bill statements. A lawyer violates Model Rule 8.4(a) if he or she “knowingly assist[s] or induce[s] another” to violate the Model Rules. Here, the partner ordered her associates to include false information on their client bills, which is a clear violation of the Model Rules.

Question 53

For over 25 years, an attorney served her clients without any complaints or ethical issues. However, during that same time, she sometimes aided her brother, who owned a bar, by helping him file false documents concerning his state liquor license applications. The attorney’s brother was never the attorney’s client.

Is the attorney subject to discipline? (Q)

Answer 53

Yes, because helping her brother to file the false documents reflects on her honesty and trustworthiness. Under Model Rule 8.4, a lawyer can face disciplinary action for engaging in dishonest conduct that shows a lack of fitness to practice law. Here, the attorney’s conduct in helping her brother file false documents clearly shows dishonesty and a lack of fitness to practice.

Question 54

An attorney was convicted of driving a vehicle with expired tags, which was a misdemeanor criminal offense in the attorney’s jurisdiction. The attorney timely paid a $500 fine that was assessed as a result of the conviction.

Is the attorney likely to be subject to discipline for professional misconduct? (Q)

Answer 54

No, because the attorney’s conduct does not reflect on the attorney’s fitness as a lawyer. The attorney’s conduct does not reflect on the attorney’s fitness as a lawyer, so the attorney will not be subject to discipline for professional misconduct. Model Rule of Professional Conduct 8.4(b) provides that it is professional misconduct for a lawyer to commit a crime that suggests a lack of honesty, trustworthiness, or fitness to practice law. Model Rules of Prof’l Conduct r. 8.4(b) (Am. Bar Ass’n 2018). The comments to Model Rule 8.4 further indicate that a lawyer’s illegal conduct will subject the lawyer to discipline professionally only if the conduct reflects adversely on the lawyer’s fitness to practice. Id. cmt. [2]. In general, the types of offenses that may give rise to discipline for professional misconduct include crimes involving violence, dishonesty, breach of trust, and serious obstruction of justice. Id. Here, although the attorney was convicted of a misdemeanor for driving with expired tags, this type of illegal conduct does not reflect adversely on the attorney’s honesty, trustworthiness, or fitness as a lawyer. Accordingly, the attorney will not be subject to discipline for professional misconduct.

Question 55

An attorney wrote a best-selling memoir about her stay in a drug rehabilitation facility as a young woman. After publication, several news organizations discovered that the attorney’s memoir was heavily plagiarized and contained many falsehoods. Ultimately, the publisher pulled the memoir and the attorney issued a public apology.

Is the attorney subject to discipline? (Q)

Answer 55

Yes, because the memoir contained plagiarism and falsehoods. It is a violation of Model Rule of Professional Conduct 8.4(c) to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Writing a memoir full of plagiarism and falsehoods clearly fits under this category.