Misconduct (Rule 8.4)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

In case lawyers were under the misapprehension that any form of deceit, dishonesty, unlawful conduct, or other improper behavior was permissible in any way, proposed Rule 8.4 is designed to put those mistaken beliefs to rest.

Current Rule 1-120, titled Assisting, Soliciting, or Inducing Violations, is the closest rule to proposed rule 8.4. It simply states, "A member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act." Beyond Rule 1-120, other improper actions by lawyers fall under other relatively specific rules and sections of the Business and Professions Code comprising the State Bar Act.

With Rule 8.4, there is no doubt the expansive range of a lawyer's duties to act responsibly. It identifies explicitly as professional misconduct violations of the State Bar Act; assisting or soliciting violations; committing criminal acts that "reflect[] adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects"; engaging in dishonest, fraudulent or deceitful conduct or reckless or intentional misrepresentation; engaging in conduct deemed "prejudicial to the administration of justice"; stating or implying that the lawyer can improperly influence an agency or official of the government to achieve otherwise prohibited results; and assisting or inducing a judge to violate judicial ethics or other rules or laws.

None of the prohibited behaviors enumerated in Rule 8.4 would ever have been deemed permissible attorney behavior. Though portions of the rule are extremely broadly stated (such as acts deems prejudicial to the administration of justice), these acts were previously prohibited by other Rules of Professional Conduct, Business and Professions Code sections, and case law. Still, by bringing the list together in the form of explicit prohibitions in Rule 8.4, the prosecution of these types of acts as professional misconduct is streamlined. In addition, to the extent these behaviors remain explicitly prohibited by statute after adoption of Rule 8.4, attorneys can expect a second charge on the same facts in any State Bar prosecution.

Rule 8.4 Misconduct

(Proposed rule adopted by the board March 9, 2017)

It is professional misconduct for a lawyer to:

(a) violate these rules or the State Bar Act, knowingly* assist, solicit or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud,* deceit or reckless or intentional misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate these rules, the State Bar Act, or other law; or

(f) knowingly* assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law. For purposes of this rule, "judge" and "judicial officer" have the same meaning as in rule 3.5(c).

Comment

[1] A violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.

[2] Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

[3] A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code §§ 6101 et seq., or if the criminal act constitutes "other misconduct warranting discipline" as defined by California Supreme Court case law. See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].

[4] A lawyer may be disciplined under Business and Professions Code § 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.

[5] Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these rules and the State Bar Act.

[6] This rule does not prohibit activities of a lawyer that are protected by the First Amendment to the United States Constitution or by Article I, § 2 of the California Constitution.