Dear Mis Conduct ...

May 2015 | Eye on Ethics

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My personal injury client recently passed away.  Do I need to inform opposing counsel or the court?

What about social media?  Can I send a friend request to someone that I know to be represented by counsel?

I work in a small firm.  Can I take on my own clients on the side?  Do I need to inform the firm that I am doing so?

Can I advise my client to enter into a contract that I know does not conform to the law and will therefore be unenforceable by the opposing party?

ABA Model Rule 8.4(c) proscribes conduct involving dishonesty, fraud, deceit or misrepresentation. The Model Rules do not define these terms. One court explained the difference by concluding that “fraud” and “deceit” require an intent to deceive, but misrepresentation does not, and that dishonesty involves “conduct indicating a disposition to ‘lie, cheat or defraud.’” In re Obert, 89 P.3d 1173 (Or. 2004). Another court parsed the differences finely:

“… Dishonesty” includes “conduct evincing a lack of honesty, probity or integrity in principle; a lack of fairness and straightforwardness,” but need not involve conduct legally characterized as fraud, deceit, or misrepresentation.” In re Scanio, 919 A.2d 1137 (D.C. 2007).

The Comment to Rule 8.4 states, “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.”   

The types of “misconduct” that are potentially covered under the rule are quite varied and can also be applied to activity that is distinct from the practice of law. See Supreme Ct. Disciplinary Bd. v. Kress, 747 N.W.2d 530, (Iowa 2008) where Rule 8.4 (c) was invoked against a law professor who changed student evaluation forms; In re Ellis, 204 P.3d 1161, (Kan. 2009) concerning a lawyer who stole food from the office cafeteria and lied when asked about it; In re Bosse, 920 A.2d 1203,  (N.H. 2007) a lawyer in a hurry signed a real estate seller’s name to a real estate listing form; In re Aboyade, 578 S.E.2d 727 (S.C. 2003) a lawyer falsified his law school transcript and sent it out as part of a job search.

Not all misrepresentations are covered. See, Attorney Grievance Comm'n v. Hall, 969 A.2d 953, (Md. 2009) a lawyer who falsely told a client who was also his girlfriend that he had been faithful to her was “wholly unrelated to the actual practice of law and do[es] not warrant a finding of a Rule 8.4(c) violation.”

For further information on when a lawyer is subject to discipline for conduct that is unrelated to their practice, see the March 2015 Eye on Ethics column entitled, “When is a lawyer not a lawyer? 

Death of a client

Of all the items in contention in negotiations over a dispute or legal claim, the fact that the lawyer has a live client would seem to be a fairly basic assumption. However, in In re Rosen, 198 P.3d 116 (Colo. 2008), lawyer Rosen was suspended for a year and a day for continuing to negotiate the settlement amount after becoming aware of his client’s death, telling the insurance company that his client’s “brain wasn’t working,” that he needed additional medical care, while rejecting one settlement offer and eliciting a counter offer. The case of In re Hayes, No. 03 SH 10, 2004 WL 578460 (Ill. Atty. Reg. & Disc. Comm’n March 2004) concerned a lawyer who read his client’s obituary in the paper and immediately settled his worker’s compensation case. Another lawyer settled a client’s $20,000 claim in a personal injury case but did not disclose to the opponent’s insurer that the client had died. In suspending the lawyer for a year and a day the court criticized the lawyer’s actions as a criminal act as well as a violation of Rule 8.4 (c) and other rules. In re Warner, 851 So. 2d 1029, 19 Law. Man. Prof. Conduct 407 (La. 2003). A Minnesota lawyer accepted a settlement offer after the client’s death. The lawyer initially said the client was hospitalized, then changed his story as bar counsel questioned him.  In re Lyons, 780 N.W.2d 629, 26 Law. Man. Prof. Conduct 264  (Minn. 2010). Rule 3.3 was implicated in In re Forrest, 730 A.2d 340, 15 Law. Man. Prof. Conduct 320 (N.J. 1999) (plaintiff’s lawyer in personal injury case violated Rule 3.3 when he failed to inform court and arbitrator of client’s death).

The ABA Standing Committee on Ethics and Professional Responsibility addressed this issue in 1995 in  ABA Formal Ethics Opinion 95-397 (1995) stating that a client’s death is material because it terminates the lawyer’s authority to act; “accordingly, any subsequent communication to opposing counsel with respect to the matter would be the equivalent of a knowing, affirmative misrepresentation should the lawyer fail to disclose the fact that she no longer represents the previously identified client.”  The committee directed, “If a lawyer conducting settlement negotiations on behalf of a client learns that his client has died, the lawyer must notify opposing counsel and the court when he next communicates with either.”

The Illinois and Vermont bar ethics committees agree. 

Citing numerous state statutes, the Illinois Committee in Opinion 96-3 (1996) stated, “a lawyer handling a personal injury claim must timely disclose the client’s death.”

The Vermont Bar in Opinion 89-2 (undated) opined that a lawyer whose client in a personal injury case dies while the lawyer is in settlement negotiations must disclose the fact of the client’s death to the insurer. Failure to do so would constitute misrepresentation of material facts, even if only by omission.

Two older state bar ethics opinions took a less stringent approach. Noting that the client’s death was a matter of public record, the Pennsylvania Bar did not find it a requirement that a lawyer in negotiation disclose a client’s death from issues unrelated to those in the ongoing negotiations.   See Pennsylvania Bar Association Opinion 93-51 (1993).

In Opinion 952  (1987) the Virginia State Bar recommended that the lawyer disclose the client’s death at the time the lawyer accepts the offer of settlement, inform the adverse party that the client authorized the range for settlement prior to his death and inform the adverse party that the estate’s administrator has also approved the settlement. That opinion cited former Model Code provision DR 1-102(A)(4), the analog to Rule 8.4(c). The Virginia Committee also added the following Note to the opinion:

Legal Ethics Committee Notes — If the client’s death would arguably affect the settlement, failing to disclose the death might violate Rule 3.3(a)(2) and Rule 4.1(b), which prohibits a lawyer from knowingly failing to disclose a fact if disclosure is necessary “to avoid assisting a criminal or fraudulent act by a client.”

Other examples of Rule 8.4 (c) violations

In ABA Formal Opinion 469  (2014), the ABA Ethics Committee stated that a prosecutor violates Rule 8.4 (c) by giving his official letterhead to a debt collection company for use in a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatened prosecution if the debt was not paid. 

Social media

Social media presents opportunities for 8.4(c) violations in part because the anonymity of this form of communication and its relative novelty causes users to forget the basic principle of the rule.  Pennsylvania Formal Ethics Op. 2014-300 (2014) warns lawyers not to contact a represented person on social media and to maintain competence by keeping informed about the variety of social media forms so as to advise clients competently. 

The Massachusetts Bar Association Ethics Op. 2014-5 (2014) permits a lawyer to send a friend request to a potential adverse party so long as he makes his position as lawyer clear in an email sent before the request. Oregon Ethics Op. 2013-189, 29 Law. Man. Prof. Conduct 189 (2013) would allow the friending so long as the lawyer uses his real name.

For further information on social media issues, see the Eye on Ethics columns entitled Facebook: Monitoring juror social media networking sites; “friending” employees of adverse parties  (November 2011) and Facebook: State bar opinions address information gathering (November 2012)

Real estate transactions

The New York State Bar ethics committee found a practice used in a real estate transfer to increase the sale price to cover an equivalent concession made by the seller at closing toward the buyer’s closing costs to be misrepresentation, and improper under the ethics rules unless full disclosure is made in the transaction documents. See, New York State Bar Association Opinion 892 (2011).

An Oklahoma lawyer was suspended for two years and one day for hiding the fact that there were $300,000 worth of tax liens against the property that had been purchased in foreclosure with the title to the property and then misleading the buyers about his progress in clearing the title. (State ex rel. Oklahoma Bar Assn v. Pacenza, Okla., No. SCBD-4983, 4/18/06).

Contracts

Agreeing to comply with a directive to tear up notes after mediation while fully planning to defy that agreement and keep the notes violated Rule 8.4 (c). Maryland Bar Association Opinion 99-6 (1999). 

In the same general vein of operating from knowledge that one’s appearance of compliance was only the appearance, the in Opinion 2015-02 (2015), the Connecticut Bar Association found misrepresentation where a lawyer signed a contract with a home improvement company knowing that under the terms of the Connecticut Home Improvement Act it was unenforceable against the purchaser because of the contract’s failure to conform to the law. If the lawyer had no intention of asserting the unenforceability in the event of a future contract dispute then there would be no misrepresentation. This committee also referenced Rule 8.4 (c). 

Moonlighting

In Opinion 2004-8 (2004) the Ethics Committee of the Philadelphia Bar Association found that an associate’s work representing private clients after hours posed a problem if her law firm was not informed and/or did not approve as this would compromise the associate’s ability to perform the necessary conflicts checks and to obtain required consent to the representation from the affected clients.   The Philadelphia committee cited Rules 1.7, 1.10 and 8.4 (c).   

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As is clear from the above sampling, the types of conduct that are potentially covered under Rule 8.4(c) are quite varied.  For further examples, See the annotations to Rule 8.4 in the seventh edition of the Annotated Model Rules of Professional Conduct (2011), and the chapter entitled Misconduct and Discipline: Dishonesty, Fraud, Deceit, Misrepresentation (last updated in 2010) as it appears at page 101:401 of the ABA/BNA Lawyers’ Manual on Professional Conduct.  

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