Rule 8.4(b) Criminal Conduct

• Library: Minnesota Legal Ethics: A Treatise (MSBA) (2022 Ed.)

Rule 8.4(b)—Criminal Conduct

I. OVERVIEW

A. Selective Coverage

The number of Minnesota discipline cases involving Rule 8.4(b) violations is too large for attention to be given to all cases in this treatise. The numerous cases that are included have been selected as representative or as particularly interesting.

B. Supporting, Observing, and Upholding the Law

Many authorities and commentators have made the point that it is fundamental that lawyers should respect and follow the law. Minn. Stat. § 358.07(9) provides an oath that attorneys take when they are admitted to practice in Minnesota: "You do swear that you will support the Constitution of the United States and that of the state of Minnesota ... ." The ABA Canons of Professional Ethics (1908) provided that a lawyer "must also observe and advise his client to observe the statute law." Canon 32. Lawyers' aspirations include, "We will uphold the respect and dignity of ... the legal system." Professionalism Aspirations § I.A. "As citizens, but especially as professionals licensed in the law, lawyers should be expected to comply fully with the criminal law without prompting." Martin A. Cole, Lawyer Criminals, BENCH & B. OF MINN., Oct. 2009, at 14, 17. These injunctions to follow the law are, however, short of a rule that would provide discipline for any violation of any law. Laws are so various and numerous that the drafters of lawyer discipline codes have identified only some categories of laws whose breach would be significant for professional character. (In contrast, judges are subject to a categorical rule, "A judge shall comply with the law, including the Code of Judicial Conduct." Rule 1.1, Code of Judicial Conduct.)

C. "Moral Turpitude"—Code

The Code of Professional Responsibility that preceded the Rules included a proscription against "illegal conduct involving moral turpitude." Minn. Code Prof'l Resp. DR 1-102(A)(3). A leading commentator of an earlier era noted, "As applied to acts in a nonprofessional capacity, this phrase is sometimes difficult to apply. For example, was the manufacture of home brew during prohibition an act involving moral turpitude? Or the fighting of a duel in another state? Or participating in Florida in 1880 in a lynching? Or refusing, as a bona fide conscientious objector, to further the war effort?" HENRY S. DRINKER, LEGAL ETHICS 43 (1953) (footnotes omitted). Substituting (as Rule 8.4(b) does) "reflects adversely on ... fitness [to practice]" for "moral turpitude" is an improvement, but does not solve all issues of application. Substituting "a criminal act" (as Rule 8.4(b) also does) for "illegal conduct" narrows application of the disciplinary provision.

D. "Reflects Adversely"

The Code included a catch-all provision, proscribing any conduct that "adversely reflects on ... fitness to practice law." Minn. Code Prof'l Resp. DR 1-102(A)(6). This broad provision was not carried forward into the Rules. Such vague language gave too little guidance to lawyers and too much discretion to discipline authorities. Under the Rules, "Conduct that adversely reflects on a lawyer's fitness to practice law but is not criminal, and not specifically proscribed by some other rule, may not be disciplined." William J. Wernz, From Character to Competence, BENCH & B. OF MINN., Dec. 1985, at 9, 9.

E. "Honesty, Trustworthiness, or Fitness"—Rules 8.3 and 8.4(b)

Rule 8.3, "Reporting Professional Misconduct," and Rule 8.4(b) both use as one standard for application, conduct that reflects adversely on a "lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." For Rule 8.3 to apply, there must also be a rule violation. For Rule 8.4(b) to apply, there must also be "a criminal act," committed by a lawyer.

F. Categories of Crimes

As the cases discussed below indicate, several categories of crimes are associated, presumptively or categorically, with certain disciplinary decisions. Petty misdemeanors are not covered by Rule 8.4(b). Gross misdemeanors may or may not be subject to discipline. Felonies that are not related to the practice of law often result in disciplinary suspensions. Felonies related to the practice of law usually result in disbarment. Crimes that involve dishonesty almost always result in public discipline, often in suspension or disbarment.

II. "CRIMINAL ACT"

A. Conviction Not Required But Often Awaited

Only "a criminal act," not a criminal conviction, is required for application of Rule 8.4(b). However, the Office of Lawyers Professional Responsibility (OLPR) will, in many circumstances await a conviction before charging a Rule 8.4(b) violation. A criminal conviction is "conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted." Minn. R. Lawyers Prof'l Resp. 19. Because many crimes, especially those unrelated to law practice, involve elements of proof that are beyond the resources or expertise of OLPR, OLPR will often await the outcome of criminal investigations and proceedings before taking action.

B. OLPR Charging a Felony

In an unusual case, OLPR charged that a lawyer, Ahola (A), committed a crime, the felony of harboring a fugitive. In re Ahola, 829 N.W.2d 366 (Minn. 2013). A also repeatedly lied to law enforcement officials, denying that her client, a fugitive, was in her home, when he was in fact there. OLPR's petition recited that the county attorney declined the prosecution, despite "ample evidence." Petition for Disciplinary Action at ¶ 9, In re Ahola, 829 N.W.2d 366 (Minn. 2013) (No. A12-1564). A admitted violation of Rule 8.4(b), as part of a stipulated discipline of public reprimand and probation. A also admitted that her lies to police violated Rule 4.1. Before approving the stipulation, the Minnesota Supreme Court required briefing. OLPR's brief relied extensively on Casby, a misdemeanor case discussed below. OLPR also distinguished a case in which a lawyer was convicted of knowingly and willfully aiding the escape of a federal prisoner, and was suspended for a minimum of five years. In re Nordstrom, 374 N.W.2d 263 (Minn. 1985).

C. Petty Misdemeanor Is Not a Crime

Rule 8.4(b) applies only where a lawyer commits "a criminal act." Not all violations of laws, even those that seem criminal in nature, are criminal acts. "See Minn. Stat. § 609.02, subdiv. 4a; cf. In re Welfare of D.D.B., 596 N.W.2d 666, 667 (Minn. App. 1999) (noting that because it could not be punished by incarceration, ordinance violation was not a crime)." Freeman v. State, 804 N.W.2d 144, 146 (Minn. Ct. App. 2011). A comment too broadly refers to "illegal conduct" in explicating the Rule. Rule 8.4 cmt. 2.

D. Contempt

In federal court, Conley was convicted of contempt and disbarred. The State Board of Law Examiners sought state court discipline. The Board introduced evidence of the federal proceedings, and rested. The court found this insufficient. "In our opinion contempt of court is not a felony, nor a misdemeanor within the meaning of the statute above quoted." In re Conley, 188 Minn. 575, 576, 248 N.W. 41, 42 (1933). The court remanded to its referee "to take the evidence and report findings," as to the conduct underlying the contempt conviction. Id. at 577, 248 N.W. at 42.

E. Contempt (Direct or Constructive, Criminal or Civil)—Knajdek v. West, 153 N.W.2d 846 (Minn. 1967)

1. Facts. Drexler (D) represented the Knajdeks (father and son) against West. The case was settled. D was directed by the court to arrange for the minor son to appear in court for approval. A hearing was set for 9:00 a.m. on a certain date. D appeared at 9:20 a.m., without the minor. Three weeks later, the judge issued an order for a show cause hearing on contempt. D explained, but his explanation was not satisfactory and he was sentenced to sixty days in jail. He appealed.

2. Summary. Procedural due process protections attach to all constructive (out of judge's presence) contempts, civil and criminal, with jury trials rights in criminal cases.

3. Direct Contempt and Summary Punishment. "[D]irect contempts may be heard and punished summarily but constructive contempts may not." Id. at 847 n.2. D's contempt was treated as "criminal in nature." Id. at 848. The purpose of criminal contempt is to punish wrongdoers and deter others.

4. Jury Trial Right for Constructive Criminal Contempt. "Our recent decision in Peterson v. Peterson, Minn., 153 N.W.2d 825, filed October 27, 1967, compels a reversal of appellant's conviction. In that case we held that a person charged with a criminal contempt not committed in the presence of the court is entitled to a jury trial." Id. at 847. The purpose of civil contempt is to remediate, and make effective a civil remedy of a private party. D's offer to secure court approval of the settlement within two weeks was, however, summarily rejected.

5. Constructive Contempt. Courts differ on whether tardy appearance is direct or constructive contempt. In Minnesota, tardiness is constructive contempt because reasons for tardiness arise outside of judge's presence, and he does not have direct knowledge.

III. "REFLECTS ADVERSELY ON FITNESS"

A. "Honesty, Trustworthiness"

Criminal acts that violate duties of honesty or trust are subject to Rule 8.4(b). Other serious crimes are also subject to the Rule, because they "reflect adversely on ... fitness in other respects." Rule 8.4(b).

B. Relevance to Practice of Law

"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 the practice of law." Rule 8.4 cmt. 2.

C. Examples of Criminal Acts Covered by Rule 8.4(b)

Among the offenses covered by Rule 8.4(b) are those "involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice." Rule 8.4 cmt. 2.

D. Pattern of Minor Offenses

Rule 8.4(b) can apply to a pattern of offenses. "A pattern of repeated offenses, even ones of minor significance when...