CHAPTER 4 - 4-3 RULE 8.4: THE "CATCHALL"

• Jurisdiction: United States

4-3 Rule 8.4: The "Catchall"

4-3:1 General Rule

Rule 8.4 has rightly been called the "catchall" rule. It contains six separate and broad categories of conduct that will be deemed to be professional misconduct and, thus, expose a lawyer to disciplinary sanctions. Unlike most of the rest of the Rules of Professional Conduct, with regard to some of its provisions the rule contains neither the requirement that the conduct be done while representing a client nor that the conduct be done knowingly. Thus it creates, in some circumstances, a strict liability regime.

Judges have wondered on occasion about the breadth of the rule. Courts have on occasion refused to impose discipline even after finding a violation of the rule.²⁷ The Appellate Court, while upholding a discipline order under the rule, has voiced criticism of its broad language, noting that this may create a circumstance where common-law rules of conduct are created.²⁸ During oral argument in the matter of Henry v. Statewide Grievance Committee the author was quizzed by Judge Lavery on whether the rule (referring in that case to Rule 8.4(4)) was used to simply to "up charge" disciplinary cases.²⁹ Because Disciplinary Counsel at that time were not involved in charging decisions, the author had no answer other than that such a procedure was not unique to Connecticut.³⁰

As will be discussed below, the rule is, indeed, very broad and applies to conduct that may have no relationship to the practice of law. Regardless of claims of unfairness, it has been applied in a variety of circumstances where no specific disciplinary rule applies. This reflects a tension between the attempt by the authors of the modern rule regime to adopt a "code" system, with specifically and clearly defined standards of conduct, and the traditional concern of the courts and the bar that their institutions be protected from "unfit practitioners" who lack the requisite "character and fitness."³¹ Indeed, the Appellate Court has noted that Rule 8.4 deals with conduct that may indicate a lack of those characteristics relevant to law practice, including dishonesty.³²

4-3:2 Scienter

The Rule 8.4 regime contains no scienter requirement.³³ Indeed, one judge has noted, perhaps erroneously, that none of the rules of conduct require scienter.³⁴ Scienter requires both prohibited conduct and intent to commit the prohibited act.³⁵ It is a required element of proof in a crime of specific intent.³⁶ "General intent" offenses do not require proof of scienter.³⁷ However, even general intent crimes require proof that the subject conduct was not accidental or inadvertent.³⁸ Rule 8.4 violations may, however, occur accidentally.³⁹

In Ansell v. Statewide Grievance Committee, an attorney was found to have violated Rule 8.4(3)'s prohibition on misrepresentation when she represented something to a court which, though false, she believed to be true.⁴⁰ Her defense was that she had a good-faith subjective belief in the truth of her statement, which had arisen from a misunderstanding of something that had happened in the case prior to her involvement, and there was no proof that her misrepresentation was fraudulent. Indeed, the Grievance Committee had specifically found that her conduct was reckless but not intentional.

The Appellate Court, however, noted that the rule had no fraud requirement and found scienter was not a requirement for a violation of Rule 8.4(3). In doing so, the court relied upon Daniels v. Statewide Grievance Committee, a case involving Rule 8.4(4), where, in a matter involving a lawyer sanctioned for failing to pay a default judgment, the court drew from a case involving a violation of a rule of judicial conduct where it was found that if the judge had intended the conduct complained of, it did not matter that he did not know that doing so violated a rule of conduct.⁴¹

The Appellate Court has found that a finding of bad faith or corrupt motive is not necessary to constitute a professional misconduct violation.⁴² On the other hand, the same court found that conduct that occurred as a result of a simple error on the part of counsel, rather than because of deliberate indifference to the a duty under the rules of conduct would not warrant discipline.⁴³ Regardless of the broad statements by some judges that none of the Rules of Professional Conduct require scienter, many require "knowing" conduct.⁴⁴ Rule 1.0(h) defines "knowing" as actual knowledge, though it also allows that knowledge may be implied from circumstances. Rule 8.4 does not require knowledge that the conduct complained of is a violation of a rule. Thus, as in Ansell and Daniels, if an attorney is found to have intended the conduct being examined, a rule violation may be found, even if the conduct was only negligent.

An example of this may be found by contrasting a violation of Rule 4.1 regarding truth-telling with a violation of Rule 8.4(3)'s prohibition on making a misrepresentation. Rule 4.1 prohibits an attorney from knowingly making a false statement of material fact. Rule 8.4(3) makes it a violation for an attorney to engage in conduct involving fraud or misrepresentation. There is no requirement of knowledge in Rule 8.4(3). Thus, as in Ansell, while a negligent misrepresentation may not rise to the level of a Rule 4.1 "knowing" misstatement of fact, even a good-faith, though incorrect, belief in the truth of the statement may be insufficient to protect an attorney from discipline for a violation of Rule 8.4(3). While some commentators have argued that Rule 8.4(3)'s use of the word "misrepresentation" should be read in the context of the other conduct prohibited by the rule, such a fraud and deceit, our courts have not made that distinction.⁴⁵ Indeed, the Ansell court specifically refused to read fraud into the misrepresentation rule.

4-3:3 Violation of a Rule of Professional Conduct or Inducing Another to Do So

Rule 8.4(1) prohibits an attorney from either attempting to or violating a Rule of Professional Conduct either by direct action or through the acts of another.⁴⁶ Though one might think that the rule would be used in cases of attempted rule violation or to hold attorneys liable for the acts of subordinates or confederates, this is rarely, if ever the case. It is most common for a Rule 8.4(1) violation to be charged with other rule violations.

A search of Grievance Committee decisions reveals many dozens of decisions where Rule 8.4(1) was either charged or found in tandem with other violations.⁴⁷ Rarely, Rule 8.4(1) will be the only rule violation charged. In several cases, the failure to file an answer to a grievance complaint was found to be a violation of Rule 8.4(1) in addition to a violation of Practice Book § 2-32(a)(1).⁴⁸

Rule 8.4(1) was implicated in a matter where two attorneys participated in a scheme to pay money to a victim of a crime premised on the agreement that the victim would withdraw his complaint and not testify against the person he had complained of.⁴⁹ The rule was also found applicable when an attorney failed to honor a subpoena and failed to turn requested documents over to a probate court.⁵⁰ It formed the basis of discipline in a matter where an attorney threatened to reveal client confidences to the INS in a dispute with his client.⁵¹

While the indiscriminate use of Rule 8.4(1) as an "add-on" strikes the authors as a misuse of the rule, it really has no practical effect on the outcome of most cases. Unlike true criminal prosecutions, where each and every charge must be disposed of, disciplinary cases focus on the conduct, not the charge.⁵² Thus, a surplus 8.4(1) charge adds little to the case, either by way of charge or result.

4-3:4 Involvement in Criminal Activity

It is a violation of Rule 8.4(2) for a lawyer to engage in criminal conduct that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice in other respects.⁵³ Not all criminal convictions result in lawyer discipline.⁵⁴ The commentary to the rule acknowledges a distinction between crimes of moral turpitude, offenses involving matters of personal morality (adultery), or matters involving violence, dishonesty, breach of trust or serious interference with the administration of justice and crimes of a different nature which are not connected to either the practice of law or to issues of character or fitness. As with Rule 8.3, a distinction is drawn between criminal conduct and criminal conduct that reflects adversely "in other respects" on a lawyer's fitness for the practice of law. Where the line is drawn is often a matter of subjective opinion.

A disbarment was ordered where a lawyer was convicted of federal wire fraud and other charges related to a scheme involving over $4 million.⁵⁵ Sale of cocaine was serious enough to warrant disbarment.⁵⁶ In one matter, an attorney seeking reinstatement after conviction of federal crimes related to a fraud scheme was denied readmission when the three-judge panel found that the lawyer's crimes "involved the core of his professional responsibilities and obligations."⁵⁷

Misconduct with a motor vehicle leading to the death of a pedestrian warranted a period of suspension.⁵⁸ Conviction of federal bank and wire fraud charges merited only a six month suspension.⁵⁹ A one month suspension was found to be appropriate for an attorney convicted in federal court of the misdemeanor of willfully failing to file a federal income tax return.⁶⁰ Lawyers who plead guilty to federal charges in a mortgage fraud scheme received suspensions.⁶¹ Another lawyer in a mortgage fraud prosecution was disbarred.⁶² A lawyer who pleaded guilty to filing false statements in violation of 18 U.S.C. § 1005, was suspended for the period he was on supervised release.⁶³ A lawyer suspended for commission of a crime may not apply for readmission until he completes his sentence, probation, parole, or supervised release.⁶⁴ In some instances, however, open violation of the law may be countenanced as part of civil...