Thursday, June 18, 2009

It's not so bad to violate a rule if you have a good reason for it. Huh??!!

The Legal Profession Blog is reporting today on a decision from the Maryland Court of Appeals that raises an interesting question regarding the nature of sanctions under the Rules of Professional Conduct.

In this case, the Court found that a lawyer violated Rule 1.8 when he made a loan to his client, but then found that this improper transaction was mitigated by the fact that the client requested the loan and that the client's need for the funds was based on some "pressing circumstances." The Court then concluded that, for this reason, the lawyer's conduct "did not rise to the level of an MRPC 8.4 violation."

I don't understand this. First of all, Rule 1.8 stands on its own. A violation of Rule 1.8 is a violation of the Rules. Thus there is no need for it to "rise to" any other level. Second, in almost all cases in which an attorney makes a loan to a client there are "pressing circumstances."

If there is a rule, the Court should apply it. What the court is saying here is that the lawyer violated the rule, but it is not so bad because he had a good reason for it.

I am sorry but that's absurd. That undermines the reason for the rule in the first place. If you don't like applying the rule, change the rule. Several states have created exceptions to this rule to allow for loans to clients in need. But don't say that it is okay to violate the rule if there is a good reason to do it. 

The opinion is available here.

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