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Ethics

Attempted Ethics Violations

By Peter A. Joy and Kevin C. McMunigal

If a lawyer engages in conduct aimed at violating an ethics rule, but ultimately does not violate the rule, has the lawyer nonetheless committed professional misconduct? In other words, is an attempt to violate an ethics rule itself an ethics violation? In this column, we focus on this question and explore a relatively recent development in legal ethics—the concept of attempted ethics violations.

Criminal law has long recognized attempt as an offense. It is one of many anticipatory crimes. Other well-known anticipatory crimes are conspiracy and solicitation. These offenses are anticipatory in the sense that they anticipate, look forward, and are precursors to what is called a target offense. Conspiracy and attempt to commit robbery, for example, anticipate the target offense of robbery.

Legal ethics, like criminal law, has long recognized a variety of anticipatory offenses. Model Rule 7.3’s prohibition of personal solicitation of potential clients is a classic example. So is Model Rule 1.8(c)’s prohibition of a lawyer drafting a will under which the lawyer will receive a bequest.

The use of attempt as an anticipatory ethics offense, however, is of relatively recent vintage. The Model Code of Professional Responsibility did not recognize an attempt to violate an ethics rule as professional misconduct. Departing from the Model Code, the drafters of the Model Rules of Professional Conduct, first promulgated in 1982, did recognize attempt as misconduct. Model Rule 8.4(a) states: “It is professional misconduct to violate or attempt to violate a rule.” (emphasis added) Neither Model Rule 8.4 nor the Comment to Model Rule 8.4 defines or explains what constitutes an attempt. Nor do the Comments to Model Rule 8.4 acknowledge that this brief phrase in Model Rule 8.4(a) constitutes both an innovation and a departure from the Model Code.

In trying to assess the contours of attempt in the legal ethics context, it is helpful to take a look at the contours of attempt in criminal law. It helps to tell us what the key questions are and how they might be answered, things the drafters of the Model Rules left unaddressed.

Mental State re: Conduct and Result

Jurisdictions across the United States uniformly require that a defendant have purpose regarding conduct and result elements in the target offense. So conviction for attempted murder requires that the prosecution prove that the defendant had purpose in regard to the future conduct that would cause the death and purpose regarding the death itself. If John Wilkes Booth had been stopped and arrested just before taking the stage at Ford’s theatre and charged with attempt to murder President Lincoln, the prosecution would have been required to prove that Booth had both purpose to shoot the gun in question and purpose regarding the death of Lincoln.

The Model Rules are silent about the mental states required for an attempted ethics violation. If attempt under the Model Rules is interpreted as conforming to the law of criminal attempt, then the lawyer must have purpose regarding both conduct and result elements in the target ethics offense.

Mental State re: Circumstances

What mental state is required for attempt liability regarding a circumstance element in a target offense? What if the target offense requires a lower mental state than purpose, such as recklessness or negligence, regarding that circumstance? What if the target offense applies strict liability to a circumstance element? Should purpose be required regarding that circumstance for attempt liability, as it is for the conduct and result elements of the target offense? Or should attempt mirror the same approach to mental state regarding the circumstance as the target offense?

For example, assume the target offense of statutory rape applies strict liability to the age circumstance element—e.g., the victim being under 16. An actor arranges to have sexual intercourse with a young woman at a motel. The actor meets the girl, goes with her to the motel room, begins to undress, and tells the girl to do likewise. Police have the motel under surveillance in regard to sex trafficking underage girls and boys and are using electronic devices in the motel’s rooms to hear what is said. Police break open the door and arrest the man, who is charged with attempted statutory rape. The girl turns out to be 14. What mental state is required regarding the age element for conviction of attempted statutory rape?

The Model Penal Code states that the mental state regarding a circumstance element for attempt liability mirrors the mental state regarding that circumstance in the target offense. The Model Rules, again, are silent on this issue.

Conduct

Jurisdictions across the United States vary greatly regarding the conduct element of attempt. There is significant disagreement on how far along in a course of conduct aimed at commission of the target offense an actor must be before becoming liable for attempt. Some use a very early test, such as “any act.” Others use a very late test, such as the proximity or unequivocality tests.

The reason for this divergence is that a tension among various purposes of punishment underlies the choice of a conduct test for attempt. A late test makes sense from a retributive point of view. The further along in the course of conduct an actor gets, the more certain we can be of the actor’s blameworthiness as measured by the actor’s internal mental state. In other words, the closer the actor gets to committing the target offense, the more certain we are that the actor truly intends to commit the target offense. A late test also makes sense from a deterrence perspective. The threat deterrence relies on is supposed to do its work in the time period between the actor starting to think about the target offense and actual commission of the offense. The later the conduct test, the longer the period of time in which deterrence has a chance to work. But a late test makes little sense from an incapacitation perspective. An early test gives the police a much larger window of opportunity to arrest a person who plans to commit a crime

A famous New York attempt case, People v. Rizzo, 246 N.Y. 334 (1927), is illustrative. The court in Rizzo found that a group of armed robbers who were driving around the city of New York looking for a man they planned to rob were not liable for attempt and thus could not be arrested by police who had been tipped off to their activities because the would-be robbers were not within a dangerous proximity of success, i.e., physically close enough to take the money from their proposed victim.

The Model Penal Code adopts a middle position on the conduct required for attempt. It requires that the actor take a “substantial step” toward commission of the target offense and that the actor’s conduct “strongly corroborates” the actor’s purpose to commit the target offense.

Criminal law commentators sometimes refer to “complete” and “incomplete” attempts. A complete attempt is one in which the actor has done the last act necessary to accomplish the target offense. An incomplete attempt is one in which the actor has yet to perform the last act. So, for example, if John Wilkes Booth had fired his gun at President Lincoln and missed, his attempt would be considered “complete.” If he had been arrested entering the theatre, his attempt would be considered “incomplete.” It should be noted that any attempt that is complete will fulfill any conduct test, early, late, or in-between. In other words, if the actor has done the last act in his plan, the actor will have fulfilled any possible conduct test. But no test requires that the actor achieve the actor’s last act in order to be liable. Every test will include some incomplete attempts.

The Model Rules unfortunately say nothing about what conduct is required for an attempted ethics violation.

Punishment

There is considerable variation in views about how an attempt should be punished. Should it receive the same punishment as the target offense? Or less punishment? If less, how much should the punishment be discounted?

The common law punished an attempt at a great discount from the punishment authorized for the target offense. An attempt was merely a misdemeanor, even if the target offense was a serious felony. The Model Penal Code takes a very different view. For most offenses, an attempt carries the same potential punishment as the target offense. Some states strike a middle position. One state, for example, sets the maximum penalty for an attempted felony at 50% of the punishment for the target offense.

The Model Rules make no mention of the potential punishment for attempt. The ABA Standards for Imposing Lawyer Sanctions also do not address the issue of attempt, and the standards do not list attempt as a factor that may be considered in mitigation.

The Restatement

The Restatement (Third) of the Law of Lawyering, like the Model Rules, recognizes attempt as subjecting a lawyer to professional discipline. Section 5(2) states: “A lawyer is . . . subject to professional discipline . . . for attempting to commit a violation. . . .”

Unlike the Comment to Model Rule 8.4, the Comment to Restatement Section 5 addresses the definition of attempt. Interestingly, it does so by incorporating the conduct test found in the Model Penal Code, discussed above. Comment e to Section 5 states:

As with the charge of attempt in criminal law, disciplinary bodies must determine that the proof presented sufficiently demonstrates that the lawyer had the requisite intent . . . , that the lawyer took a substantial step in a course of conduct planned to culminate in the lawyer’s commission of the offense, and that evidence concerning that step is as a whole strongly corroborative of the lawyer’s purpose. Compare Model Penal Code § 5.01 (1985) (defining offense of criminal attempt).

This makes sense on a number of grounds. First, both the Restatement and the Model Penal Code are projects of the American Law Institute. Second, the Model Penal Code’s treatment of attempt has been accorded great respect by legislators and judges as a thoughtful approach to dealing with the definitional problems posed by attempt. Many states have adopted the Model Penal Code’s attempt provisions or variations of them. Though federal criminal statutes, such as the one dealing with bank robbery, make attempt an offense, these federal statutes, like the Model Rules, make no attempt to define it. To deal with this definitional vacuum, federal judges have adopted the Model Penal Code’s attempt provisions into federal law. (See, e.g., United States v. Jackson, 560 F.2d 112 (2d Cir. 1977).)

Disciplinary Cases

Despite the fact that Model Rule 8.4(a), with its recognition of attempt as misconduct, and state ethics rules adopting its language have been around for over 30 years, a sparse handful of reported state disciplinary cases from a few states have dealt with attempted violation of an ethics rule as misconduct. (See People v. Katz, 58 P.3d 1176 (Colo. O.P.D.J. 2002) (attempted conversion); In re Bash, 880 N.E.2d 1182 (Ind. 2008) (attempt to have sexual relationship with client); In re Cushing, 646 N.E.2d 662 (Ind. 1995) (attempt to file motion in state where lawyer not licensed); In re Swarts, 30 P.3d 1011 (Kan. 2001) (attempt to falsify evidence); In re Fink, 22 A.3d 461 (Vt. 2011) (attempt to charge unreasonable fee); Lawyer Disciplinary Bd. v. Stanton, 760 S.E.2d 453 (W. Va. 2014) (attempt to have sexual relationship with client).)

It may be that state disciplinary authorities are making greater use of attempt than these cases indicate, but there is no way to know for certain. Our experience is that few reported state discipline cases involve attempt, and no one has done empirical research into this issue.

One characteristic of all these cases is failure to define or even discuss what constitutes an attempt—what mental state or states and what conduct are required. This should come as no surprise because the ethics rule they are applying—the state’s Rule 8.4(a), mirroring the language of Model Rule 8.4(a) and its Comment—does not define or discuss what constitutes an attempt.

Mental State

In most of these cases, the evidence appears to indicate fairly clearly that the lawyer had intent to engage in conduct that violated an ethics rule.

Conduct

In several of the cases, the lawyer found liable for an attempted ethics violation committed the last act necessary to violate the target ethics offense but was foiled in some way. For example, in In re Cushing, 646 N.E.2d 662 (Ind. 1995), an Indiana lawyer was found to have violated the ethics rules for attempting to file a motion in a California court when he was not licensed to practice law in that state. The California court refused to accept the motion for various reasons, including the lawyer’s failure to include the required first appearance fee. (Id. at 663.) The Indiana Supreme Court found that the lawyer violated both Indiana R. Prof. Conduct 5.5(a), attempting to “practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction,” and Indiana R. Prof. Conduct 8.4(a), for attempting to violate a rule of professional conduct. (Id. at 664.)

In Cushing and other similar cases, it was not necessary for the court to articulate a conduct test for an ethics attempt—an early test, a late test, or an intermediate test—because the lawyer would have fulfilled any of them by the time he had performed the last act in his plan. Nonetheless, even if dicta, it would have been helpful for these courts to have addressed the definition of an ethics attempt for the guidance of disciplinary authorities and lower courts in dealing with future cases in which a lawyer is stopped prior to taking his last act.

Some of these cases, though, do raise interesting conduct and mental state issues. For example, in In re Fink, 22 A.3d 461 (Vt. 2011), the Vermont Supreme Court dealt with a charge that a lawyer attempted to collect an unreasonable fee. The respondent lawyer represented a client who was a quadriplegic, having been injured in a trampoline accident. The client was pursuing a personal injury claim against the manufacturer using another lawyer who specialized in such cases but lived in a city some distance from the client. The respondent lawyer lived near the client and had worked on domestic relations matters for the client. He arranged with the client to be paid hourly for the domestic relations work. He entered into an oral contingent fee agreement with the client to be paid 12 percent of damages awarded at trial for facilitating communication between the client and the lawyer who was handling the personal injury case. The lawyer did act as a go-between for the client in dealing with the personal injury lawyer. The lawyer, however, never tried to collect the 12 percent fee, even after the case settled. He also never tried to collect the hourly fees owed him for the domestic relations work.

The disciplinary authorities and the Vermont Supreme Court found that the 12 percent agreement was unreasonable after applying a variety of the factors listed in Model Rule 1.5(a). It also found that the lawyer attempted to collect this unreasonable fee in violation of Model Rule 8.4(a). The lawyer basically argued that he did not engage in any conduct that would constitute an attempt to collect this fee. It seems he got no further than entering the agreement and doing some work. But the court nonetheless found that he violated 8.4(a)’s attempt prohibition. Unlike several of the other cases, the lawyer here clearly did not complete a last act in an attempt to collect this fee. Accordingly, the Vermont disciplinary authorities and supreme court should have addressed what conduct is required for an ethics attempt and whether the lawyer fulfilled that conduct requirement. But there is no recognition in the court’s opinion that the case required analysis and resolution of the question of what conduct is required for an ethics attempt.

Would this lawyer’s oral agreement with the client fulfill the proximity test? In other words, did he come dangerously close to collecting this fee? This seems dubious. What about the Model Penal Code test—was his oral agreement to the fee a substantial step toward collecting the fee that strongly corroborated his intent to collect the fee? This again seems dubious because he took no steps beyond the agreement to collect the fee. What about a very early “first step” test?

What about the lawyer’s mental state? In criminal law, purpose must be proven regarding the target offense, here the offense of collecting an unreasonable fee. The fact that the lawyer apparently never made any effort to collect the 12 percent fee, even after the client received a $682,500 settlement, raises questions about whether the lawyer had purpose to collect the fee. It also raises interesting questions about time-framing. Is the lawyer’s mental state assessed at the moment he entered the agreement? Or at a later time? Normally, the mental state must accompany the conduct that constitutes the attempt.

One aspect of these cases that obscures what constitutes an ethics attempt is the fact that the cases normally involve multiple ethics offenses with the attempt charge appearing as almost an afterthought. Also, the conduct that forms the basis for the attempt charges in some of the cases itself constituted an ethics violation other than attempt. For example, in regard to the Fink case, Vermont Rule 1.5(a) states that a lawyer “shall not make an agreement for . . . an unreasonable fee.” So the lawyer in that case violated Rule 1.5(a) just by agreeing with the client to the fee that the Vermont Supreme Court found unreasonable without resorting to attempt to violate 1.5(a).

Conclusion

We think that the Model Rules’ recognition of attempt to violate an ethics rule as misconduct was a positive step in keeping with the many other anticipatory ethics offenses the Model Rules deploy. But, as we have shown in this column, the Model Rules need to treat attempt more thoroughly and thoughtfully than they currently do. We think it makes sense to give attempt its own subsection in Model Rule 8.4 rather than just placing the phrase “or attempts to violate” in 8.4(a), as it is now. The current placement of this language along with the lack of any discussion or explanation in the Comment to 8.4(a) makes the addition of attempt look like an afterthought. The new subsection and its accompanying Comment should define completely and clearly what constitutes an attempt. Both the mental state and the conduct elements should be set forth. Such treatment will be useful to ethics authorities, judges, and lawyers dealing with issues of attempt under the Model Rules.

We also recommend that the Model Rules drafters follow the lead of the Restatement by looking to the Model Penal Code and its commentaries for guidance on how to deal with the definitional issues the subject of attempt presents. As noted before, the Model Penal Code’s treatment of attempt has been treated as authoritative and influential by legislatures and judges throughout the United States. One advantage of looking to the Model Penal Code in shaping the contours of attempt in the ethics context is that lawyers and judges across the country are already familiar with the Model Penal Code’s treatment of attempt.

PETER A. JOY is the Henry Hitchock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri.

KEVIN C. McMUNIGAL is a professor of law at Case Western Reserve University School of Law in Cleveland, Ohio.

 

Both authors are regular columnists for Criminal Justice magazine and are co-authors of Do No Wrong: Ethics for Prosecutors and Defenders (2009).

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