Fall 2006 #1. After-hours ethics and the Maine lawyer.

Author:by Robert E. Mongue
 
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Maine Bar Journal

2006.

Fall 2006 #1.

After-hours ethics and the Maine lawyer

Maine Bar JournalVolume 21, Number 4, Fall 2006AFTER-HOURS ETHICS AND THE MAINE LAWYERby Robert E. MongueThe practice of law is a way of life rather than an occupation. The attorney's role as an attorney seems inextricably intertwined with all other roles whether it is as a parent, spouse or citizen. This is seldom more evident than when the ethical rules governing conduct of attorneys extend beyond the attorney's actual practice of law.

Many of the ethical rules codified in Maine Bar Rule 3, such as those relating to conduct during litigation, are confined by their terms to the attorney's professional life.(fn1) However, Rule 3.2 has no such restricting language and has been liberally applied to conduct occurring when the attorney is "off the clock." Rule 3.2(f) in particular applies to illegal conduct, dishonest conduct and conduct prejudicial to the administration of justice both inside and outside an attorney's professional role.(fn2) This article examines the Maine Bar Rules, with particular focus on Rule 3.2(f), to review the extent to which application of the Rules extend into personal behavior, and to ascertain the standards or guidelines by which nonprofessional conduct of an attorney becomes conduct subject to professional discipline of that attorney as an attorney.

History

Imposition of disciplinary measures on attorneys, including striking their names from the roll of attorneys (disbarment), is grounded in Title 4 M.R.S.A. §851. As originally enacted in 1954, Section 851 provides a procedure for bringing an information against an attorney charging that "he has become and is disqualified for the office of attorney and counselor at law."(fn3) In 1965, Section 851 was amended by adding that the information could charge the attorney with having "conducted himself in a manner unworthy of an attorney."(fn4)

Before the present Maine Bar Rules were adopted in 1978, the Maine State Bar Association adopted disciplinary rules compiled into a code of professional responsibility. Although the association was a private organization and its rules were not binding on the Court in a Section 851 proceeding, they were considered useful guidelines for the understanding of a lawyer's obligations and were consulted by the Court as a source of guidance in disciplinary matters.(fn5) In addition, the Court would rely on language contained in the Attorney's Oath contained in 14 M.R.S.A. §806(fn6) "thereby in effect applying to [the attorney's] conduct the standard [the attorney] had sworn to uphold when he was admitted to practice."(fn7)

Section 851 was not repealed or amended when the Maine Bar Rules were adopted by the Maine Supreme Court in 1978. Indeed, M.Bar.R. 3.1 provides, "Violation of these rules shall be deemed to constitute conduct 'unworthy of an attorney' for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A).(fn8) Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned."(fn9)

The Maine Bar Rules were not developed to replace Section 851. Rather, as stated in M. Bar R. 2(a), the rules are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to their relationship with their client, the general public, other members of the legal profession, the courts and other agencies of this State." As discussed below, the Maine Bar Rules have provided substantial standards for attorneys with respect to the actual practice of the profession of law. To the extent that the Rules extend to conduct of an attorney outside of the actual practice of law, they remain at best guidelines. In some circumstances, those guidelines provide little guidance.

Guidelines v. Standards

The change in nomenclature from "guidelines" to "standards" is not without substance. It is analogous to the distinction between "rule-based" law and "standard-based" law.(fn10) For purposes of this analysis, the Maine Bar Rules seek to provide "rule-based" standards rather than purportedly lesser guidelines previously in place. Under the Maine Bar Rules, the Grievance Commission applies specific rules based upon pre-existing legal doctrines to the facts with the goal of yielding "strictly rational and objective decisions, untainted by the personal views" of the individuals on the panel.(fn11) This is juxtaposed to the prior system which required the adjudicator to apply the guidelines intuitively to sets of facts which were perceived as essentially unique in each case, i.e., to use discretion and adapt their decisions to the particular case.(fn12)

In many respects, the Maine Bar Rules succeeded in moving attorney discipline proceedings from general guidelines to specific rule-based standards. This is most evident in the rules relating to attorneys' conduct during representation and litigation.(fn13) For example, the circumstances under which a lawyer may divide a fee for legal services are strictly described and circumscribed. There is no room for discretion on the part of the attorney and little need for discretion or intuition on the part of the grievance panel when determining whether the rule has been violated.(fn14) In general, the Bar Rules succeed in providing appropriate standards for attorneys with respect to their practice of the profession of law.

The Bar Rules are less successful in delineating specific standards for attorney conduct outside of their practice of law. Bar Rule 3.2(f) simply incorporated the provisions of MSBA Disciplinary Rule 1-102.(fn15) Indeed, it was not until 1988 that M. Bar R. 3.2(f)(2) was amended to replace the phrase "involving moral turpitude" with "that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects" in reference to illegal acts which may result in the invocation of discipline upon an attorney.(fn16) As discussed below even this change did little to move Rule 3.2(f) from the guideline status of its predecessor, DR 1-102, to the rule-based standard contemplated by the Rule applicable to attorneys while actually engaged in the practice of their profession.(fn17)

Rule 3.2(f) Other Misconduct

Rule 3.2(f)(2) was amended because the phrase "involving moral turpitude" was considered to be ambiguous and over broad. While referred to as a "standard," it hardly provided even general guidelines for adjudicators in determining whether conviction of a particular crime warranted discipline for the convicted attorney. The Advisory Committee Note to the 1988 Amendment focuses particularly on "dealing with the effect to be given OUI and drug abuse convictions in disciplinary proceedings."(fn18) The new formulation sought to narrow "the focus to conduct that is relevant to the lawyer's ability to carry out the trust imposed by the grant of the privilege to practice law."(fn19) However, it is no more clear what constitutes conduct relevant to the lawyer's ability to carry out that trust than what conduct constitutes moral turpitude.

As if to illustrate the continued murkiness of these waters, the Advisory Committee note cited the comment to ABA Model Rule 8.4 which, in turn, stated that "moral turpitude" can include offenses involving matters of personal morality such as adultery.(fn20) The new formulation seeks to differentiate between such matters of personal morality(fn21) and matters of dishonesty and untrustworthiness. Adultery, however, intrinsically involves the adulterer's dishonesty and untrustworthiness, at least in relation to the adulterer's spouse - the very qualities upon which the new formulation of Rule 3.2(f)(2) rests, and appears to be the epitome of the "conduct involving dishonesty, fraud, deceit, or misrepresentation" prohibited by Rule 3.2(f)(3). Again, there is little guidance on how the adjudicator is to separate out this kind of dishonesty and untrustworthiness from the kind that reflects adversely on the lawyer's ability to carry out the trust involved in practicing law.(fn22) The distinction, like beauty, art, or pornography, appears to lie in the eye of the beholder. The disciplinary decision is made on a fact-specific basis for each complaint brought under the Maine Bar Rules when the complaint involves conduct of an attorney outside the professional role of an attorney.

When decisions are based on subjective criteria, the individual decisions provide little precedential value for succeeding proceedings.(fn23) Yet review of decisions of the Grievance Commission and the courts for common factors may provide additional guidance to attorneys in determining when conduct outside their professional practice exposes them to potential professional discipline in addition to whatever consequences may be enacted by the government or society.(fn24)

Common Factors

As discussed above, the Maine Bar Rules, especially Rule 3.2(f), have potential application to all attorney conduct regardless of whether that conduct occurs while the attorney is acting in the professional role of an attorney. As actually applied, according to my analysis, both the Grievance Commission and courts strive to establish a connection between the conduct of the attorney in his "private" capacity and in...

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