The Indiana Supreme Court recently issued an interesting opinion in which it disbarred a lawyer for what it called a “repugnant pattern of behavior.” The behavior was, indeed, repugnant and disturbing, but the opinion raises an interesting question about the standard that should be used to justify the imposition of sanctions for conduct outside the practice of law.
The facts of the case, in a nutshell, are as follows: The lawyer, who was 41 years old and married at the time, began a romantic relationship with his daughter’s college roommate. The roommate ended the relationship in March 2008 and for the next two years the lawyer continued to harass the young woman by e-mail, by phone and in person. The court describes the conduct in some detail and characterizes it as "threatening, abusive, and highly manipulative in nature.”The lawyer also left many “profoundly disturbing,” angry, and insulting voice mail messages for the woman. The lawyer also engaged in what is now known as "revenge porn," by sending nude photos of the woman to others in e-mails, and posting them on adult websites and on his own blog.
In another count of the complaint, the court considered the lawyer's conduct in representing an unrelated client. In that case, the lawyer failed to perform the work for which he was hired. For this particular conduct, the lawyer was charged with violating Indiana Rules of Professional Conduct 1.4(a)(2):Failing to reasonably consult with a client about the means by which the client’s objectives are to be accomplished and1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.
I have no problem with the conclusion that the lawyer violated those rules and should be disciplined. I also have no problem with the conclusion as another count related to rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. This allegation was based on a number of arguments the lawyer made to the disciplinary authority which were found to be "tortured and not credible."
OK, that's all fine, but I am not sure that, if that was all, the lawyer would have been disbarred. It seems to me he was disbarred because of the, admittedly, very disturbing behavior related to his personal relationship and, therefore, which was mostly not related to the practice of law. (I say mostly because the conduct included the lawyer filing a complaint against the woman in question, which can be argued involves the practice of law in the sense that it suggests using the legal process for inappropriate purposes.)
Assuming that I am right in suggesting that the real reason for disbarment was personal (not professional) conduct, here is what I think is the interesting issue: what are the guidelines for discipline for conduct in a lawyer's personal life?
In class, I like to use the case In re Lamberis, in which the Illinois Supreme Court decides that a lawyer can be disciplined for personal conduct only when that conduct somehow relates to the lawyer's competence to practice law. According to this very broad approach, regardless of what the conduct is, or its context, if the disciplinary authority can somehow make the claim that the conduct shows the attorney is not fit to practice law, then the attorney can be disciplined. The conduct in Lamberis was plagiarism for a master's thesis, which the court found displayed dishonesty.
The problem in Illinois, however is that, more recently, in In re Karavidas, the same court decided, without mentioning Lamberis, that a lawyer can only be disciplined for conduct that violates a specific rule of professional conduct. The conduct in Karavidas was misappropriation and mishandling of money in a trust, but not when acting as a lawyer, which the court found did not justify discipline. In my opinion, the cases are not reconcilable. Whether a person can be trusted to manage a trust fund as a fiduciary officer, in my opinion, clearly reflects on an attorney's fitness to practice law since attorneys have a fiduciary duty toward their clients and have clearly defined duties related to trust accounts. Yet, the court did not find the conduct to be sanctionable.
I am not familiar with the law in Indiana, however, so I am only going to raise questions that maybe some of you can comment on.
For the disturbing personal conduct in Keaton the lawyer was charged with violating Indiana Rule 8.4(b): Committingcriminal acts that reflectadversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The "criminal acts" in question was the conduct the court characterized as "stalking, harassment, and intimidation." The lawyer was at one point arrested and charged for stalking, but the charges were later dropped.
My first question is this: how are "criminal acts" defined by rules of professional conduct? On the one hand, you can argue that the act is not criminal until it is adjudicated as such. In other words, until a court has decided that the lawyer is guilty of criminal conduct (or the lawyer has entered a plea agreement, etc), neither one of which had happened in this case. On the other hand, you can argue that the disciplinary process should not have to wait until a criminal case is decided to determine if the lawyer should be disciplined. In that case, however, wouldn't it be better if the rule eliminated the word "criminal"? Otherwise, what constitutes "criminal" conduct would be decided by the disciplinary board. Is that the law in Indiana?
My second question is: if the conduct is not criminal but the court considers the conduct disturbing enough to warrant concluding the lawyer should not be allowed to practice law, isn't the court adopting the broad view that any conduct in a lawyer's personal life can subject the lawyer to discipline as long as the court sees a connection between the conduct and the lawyer's fitness to practice law?
Personally, I don't have a problem with that standard, just as I did not have a problem with its application in In re Lamberis, but I am not sure that is the prevailing standard. It does not seem to be in Illinois; I wonder if it is in Indiana. And if it is, why didn't the court discuss it?
The case is called In the Matter of R. Mark Keaton and you can find a copy of it here. The Legal Profession blog has more on the case here.