Sunday, March 17, 2019

Lawyer gets sanctions for conduct as a landlord

I recently posted a few stories (here) that raise the same question:  under what circumstances is the state justified in imposing sanctions for conduct not related to the practice of law.

As I said in one of my recent posts, there is a case in Illinois that suggests the answer depends on whether the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Using this analysis, it can be argued, for example, that a lawyer who who steals money should not be trusted to handle other people's money or affairs.

Now comes the story of a lawyer who put glue in his tenant’s locks and let the air out of her tires.  The lawyer's defense:  he was acting as a landlord, not as a lawyer.

So, is this conduct that should subject the lawyer to sanctions?  Under what rule?

If the conduct is "criminal", maybe the state can base the decision on rule 8.4(b) which considers misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.  Is that a strong argument?

There are very few details about the decision of the Board, but from what I read it is not based on a specific rule.  Instead, the story cites the board as concluding that the conduct "exposed the legal profession to obloquy, contempt, censure and reproach” and that the conduct was “contrary to justice, ethics, honesty or good morals.”

This is an awful standard.  First, it is not based on any specific rule; second, it is based on the notion of either an "appearance of impropriety" or an effect on "the image of the profession" or both; and, third, it suggests that lawyers are bound by a duty to abide by "good morals."

I have never liked the use of a standard based on an appearance of impropriety or the image of the profession, which is such a vague and subjective standard.

In terms of the appearance of impropriety, there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to another standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. 

The notion of "good morals" is also problematic for many reasons.  First of all, who decides what is to be considered "good morals" and what is the basis for that decision?  This is the same problem when we deal with a standard based on the "dignity of the profession."  Who decides what is "dignified"?   This notion was rejected in an old case in Illinois that holds that "we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life."

Finally, if the question of the basis for possible discipline was not hard enough, then we get into the next problem:  what is the appropriate sanction for conduct outside the practice of law? (I wrote about this recently here.)

According to the story, the Michigan Attorney Discipline Board found misconduct but has not yet determined the appropriate discipline.

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