You Don't Have to Clock Out at Five
Personal Behavior and Your Law License
By Gina L. Hendryx, General Counsel
The practice of law is a profession. The privilege to do so is earned through study, examination and licensure. Unlike other employment, your personal behavior can negatively impact the opportunity to pursue your profession. The following is a survey of cases, primarily from Oklahoma, that review personal choices which have impacted upon the professional’s continued practice of law.
A lawyer may be disciplined for actions not related to the practice of law. Professional discipline may be warranted for personal behavior if that behavior reflects adversely on the lawyer’s fitness to practice law. Oklahoma Rule of Professional Conduct 8.4 sets out when personal misconduct may be the basis for professional scrutiny.
OKLAHOMA RULES OF PROFESSIONAL CONDUCT CHAPTER 1, APP. 3-A MAINTAINING THE INTEGRITY OF THE PROFESSION
Rule 8.4 Misconduct
1) It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist 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 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 the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
 Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
TAX LAW VIOLATIONS
Violations of the tax code are included within the definition of ORPC 8.4 (b) when they are also criminal offenses. In State ex rel. Oklahoma Bar Association v. Strickland, 2011 OK 54, 256 P.3d 76, Strickland had pled guilty and had been sentenced for the offense of willful failure to file an income tax return for the year 2003. Upon de novo review, the Oklahoma Supreme Court held the appropriate professional discipline to be a public censure. In imposing discipline the court agreed with the following statement of the sentencing judge:
This is a serious offense. We have to promote respect for the law [because] our tax system depends on voluntary compliance and, if it seemed that someone who does not file their tax returns bears no [consequence], then that’s not going to deter, help deter other folks from following in that path.” Strickland at ¶12.
The Oklahoma Supreme Court has held that ORPC 8.4 (b) is violated when a lawyer engages in unlawful acts of violence. Attorney disciplinary proceedings were initiated after an attorney was arrested and charged with felony assault with a dangerous weapon. The attorney entered an Alford plea to the reduced charge of misdemeanor assault and battery. The charges stemmed from a physical altercation with a non-lawyer in the parking lot of a local business. The court noted that the altercation did not involve any attorney/client relationships. However, “[d]iscipline may be imposed on an attorney acting outside of an attorney-client relationship.” State ex rel. Oklahoma Bar Association v. Hayes, 2011 OK 71, ¶13. The court suspended Hayes for 30 days and ordered him to pay the costs of the disciplinary investigation.
Drug related offenses often lead to discipline for violating Rule 8.4 (b).
The Oklahoma Supreme Court has several attorney discipline opinions wherein drug related offenses were the underlying violation.
Felony drug offenses are of great concern to this court, both because of their criminal nature and because addiction prevents an attorney from adequately caring for the legal affairs of his clients, putting the public in danger. (Citations omitted). State ex rel. Oklahoma Bar Association v. Blackburn, 1999 OK 17, ¶12, 976 P.3d 551.
Alcohol related offenses do not always equate to discipline charges.
Attorney discipline cases are determined on a case by case basis due to the different circumstances posed. This is especially true when alcohol related offenses are the basis for attorney discipline charges.
Discipline imposed in cases involving alcohol related crimes has ranged from the severe, when coupled with harm to clients, to censure, when no clients were involved. Probationary periods have often been imposed in cases of alcohol-related offenses. While alcoholism alone is not enough to mitigage discipline, the fact that an attorney recognized his or her problem, sought and cooperated in treatment and was willing to undergo supervision has convinced the court that severe discipline need not be imposed. State ex rel. Oklahoma Bar Association v. Carpenter, 1992 OK 86, 363 P.2d 1123.
Most reported discipline cases involve multiple alcohol offenses. Minor criminal offenses that do not reflect adversely on a lawyer’s fitness to practice law are not covered by Rule 8.4. Convictions for DUI do not facially demonstrate a lawyer’s unfitness to practice law. All circumstances must be investigated including, but not limited to, previous charges, impact upon clients, other alcohol related offenses, etc. See State of Oklahoma ex rel. Oklahoma Bar Association v. Armstrong, 1992 OK 79, 848 P.2d 538.
SEX WITH CLIENTS
Sexual relationships between lawyer and client are often the basis for discipline proceedings. The Oklahoma Supreme Court first addressed the issue in 2005. In the discipline matter, the attorney was involved in a consensual sexual relationship with his divorce client. The lawyer had known his client for seven years prior to forming the attorney-client relationship. The complaint against the lawyer was filed by opposing counsel.
This case is the first in which this court has been presented with the issue of whether a lawyer who engages in a sexual relationship with a client involved in a divorce proceeding violates the rules governing lawyers’ conduct if the client admittedly consented to the relationship. …This court unequivocally recognized that a lawyer’s sexual advances toward a client exploit the attorney-client relationship and constitute professional misconduct which will result in discipline. State ex rel. Oklahoma Bar Association v. Downes, 2005 OK 33, §28-29, 121 P.3d 1058.
Subsequent to the Downes decision, the Oklahoma Supreme Court adopted significant changes to the ORPC. It is now a conflict of interest to have sexual relations with a client unless the sexual relationship existed prior to the client-lawyer relationship.
(j) A lawyer shall not have sexual relations with a client unless: 1) a consensual sexual relationship existed between them when the client-lawyer relationship commenced and 2) the relationship does not result in a violation of Rule 1.7(a)(2).
ORPC 1.8 (j).
Lawyers may be disciplined for conduct that occurred prior to admission to the bar. In State ex rel. Oklahoma Bar Association v. Flanery, 1993 OK 97, 863 P.2d 1146, Flanery embezzled $71,000 from relatives over a three-year period. The embezzlements ended about one or two months prior to Flanery being licensed as an attorney. The Oklahoma Supreme Court held it had jurisdiction to discipline the attorney and ordered him disbarred for the conduct.
In attorney discipline matters, the Oklahoma Supreme Court functions as an adjudicative licensing authority that exercises exclusive original cognizance. State ex rel. Oklahoma Bar Association v. Giger, 2001 OK 96, ¶5, 37 P.3d 856.
The Oklahoma Supreme Court bears the ultimate responsibility for deciding whether misconduct has occurred and what discipline should be imposed. The important lesson to be learned from those who have been disciplined for nonlawyer conduct is that your actions away from the office can significantly impact your ability to practice law.
Ms. Hendryx is OBA general counsel.
Originally published in the Oklahoma Bar Journal -- April 14, 2012 -- Vol. 83, No. 11