Attorney Misconduct

As the model rules indicate, an attorney may be charged with misconduct if she or he commits a criminal act. However, not all violations of the law may result in professional censure. According to the ABA, a lawyer is professionally responsible "only for offenses that indicate lack of those characteristics relevant to law practice." These include violations involving "violence, dishonesty, breach of trust, or interference with the administration of justice" (Model Rules of Professional Conduct, Rule 3). Nevertheless, violations of the law may seriously impair an attorney's professional standing.

Ethical rules also govern the conduct of attorneys before courts. Thus, an attorney is guilty of misconduct toward the court if he or she brings a frivolous, or unnecessary, proceeding to court; makes false statements to the court; offers false evidence; or unlawfully obstructs another party's access to evidence. It is also considered misconduct if an attorney attempts to influence a judge or juror by illegal means, such as BRIBERY or intimidation, or states personal opinions regarding the justness of a cause or the credibility of a witness. Special rules govern trial publicity as well. These forbid an attorney to make statements outside of court that will influence a court proceeding. For example, an attorney may not make statements related to the character, credibility, guilt, or innocence of a suspect or witness in a court proceeding. Attorneys are forbidden to communicate directly or indirectly with a party represented by another lawyer in the same matter, unless they receive permission from the other attorney. This law is designed to protect laypersons involved in legal proceedings from possibly hurting their cases by speaking with the opposing lawyer.

Federal and state laws also define attorney misconduct and empower judges to discipline wayward attorneys. Rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.A.), for example, requires sanctions for lawyers and clients who file frivolous or abusive claims in court. In a 1989 case, Nasco, Inc. v. Calcasieu Television & Radio, 124 F.R.D. 120 (W.D. La.), a federal district judge suspended two lawyers and disbarred another for "illegal and fraudulent schemes and conspiracies" designed to slow a case in court for the benefit of their client.

Beginning in the late 1980s, attorneys have been required to report the misconduct of other lawyers, with failure to do so considered to be misconduct in itself and resulting in serious disciplinary measures. A 1989 Illinois Supreme Court ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, found that attorneys have a duty to report other lawyers' misconduct even when a client has instructed them not to do so. The Illinois Supreme Court suspended James H. Himmel from the practice of law for one year after he failed to report a misappropriation of client funds by another lawyer, a violation of rule 1-103(a) of the Illinois Code of Professional Responsibility. Himmel's failure to report, the court found, had allowed the offending attorney to bilk other clients as well. The attorney guilty of misappropriating funds was disbarred.

Lawyers have also been found guilty of misconduct with regard to the advertising of their services. It is legal and ethical for attorneys to advertise, but if that advertising is false, deceptive, or misleading, makes unsubstantiated comparisons to another lawyer's services, or proposes means contrary to rules of professional conduct, the attorney can be charged with misconduct. For example, an attorney was disbarred in Maryland for publishing misleading advertisements soliciting customers for "quickie" foreign divorces and misrepresenting his competence and knowledge of the law (Attorney Grievance Committee v. McCloskey, 306 Md. 677, 511 A.2d 56 [1986]).