II. RPC 8.4(b), (c): GENERAL CANDOR RULES
The general rule governing attorney candor is found in RPC 8.4(c). RPC 8.4(b) addresses attorney candor with regard to criminal matters. Both rules intersect in interesting and complex ways with the rules governing attorney confidentiality.
A. RPC 8.4(c): Dishonesty, Fraud, Deceit, or Misrepresentation
RPC 8.4(c) is the candor rule of the greatest generality. RPC 8.4(c) makes it misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." This rule was carried over unchanged from DR 1-102(A)(4) of the Code of Professional Responsibility (CPR), as adopted in Washington in 1972. There was nothing in the interpretive Ethical Considerations pertinent to this provision in the CPR, nor is there anything addressing this rule specifically in the comments to the current rule. There is, however, a definition of "fraud" and "fraudulent" in RPC 1.0(d), in the terminology section, that sheds light on the meaning of the word "fraud" as used in RPC 8.4(c): "‘Fraud' or ‘fraudulent' denotes conduct that has a purpose to deceive and is fraudulent under the substantive or procedural law of the applicable jurisdiction, except that it is not necessary that anyone suffered damages or relied on the misrepresentation or failure to inform." Comment 5 to RPC 1.0 provides:
When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. See also Washington Comment [13].5
But given the juxtaposition of the word "fraud" beside "dishonest," "deceit," and "misrepresentation," fine-tuning the meaning of "fraud" probably does little to limit the reach of RPC 8.4(c).
And reach it does: the rule is not limited to cases in which a lawyer is representing a client, nor even limited to conduct committed while engaged in law practice. Thus, for example, a lawyer can violate RPC 8.4(c) by hiding assets in connection with his or her private affairs6. or by engaging in academic dishonesty.7 It is of some historical interest, perhaps, that when the Model Rules of Professional Conduct (MRPC) were proposed, the Kutak Commission recommended against adoption (strictly, against continuation) of what became MRPC 8.4(c).8. But its recommendation was quickly rejected by the American Bar Association (ABA) House of Delegates in this respect.
Given that RPC 8.4(c) purports to cover every aspect of a lawyer's life, public and private, we should start by asking whether a "scienter" requirement has been read into it. As will be noted from the definition of "fraud" in the terminology section and the accompanying comment, "fraud" does not encompass negligent representation as that word is used in the RPC. But what about the words "dishonesty" and "misrepresentation"? We are all aware that tort law includes a concept of "negligent misrepresentation."9. The importance of answering the question is reinforced by the fact that the ABA Standards for Imposing Lawyer Sanctions, which are followed by our Supreme Court, would generally recommend a reprimand "when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client."10 The standards also recommend a reprimand when a lawyer "knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer's fitness to practice law" and an admonition for similar conduct that is not "knowing."11
Although some jurisdictions have expressly read into their versions of RPC 8.4(c) an intent requirement,12 we have found no Washington cases that have done this clearly. The Washington Supreme Court regularly quotes language dating from In re Dann,13 a 1998 case in which the court stated that "[t]o determine an RPC 8.4(c) violation, the court must decide ‘whether the attorney lied. No ethical duty could be plainer.'"14 The court seems to read into the section an intent requirement in that "lying" seems to require intent, but the court stops short of saying this is what it means. Nothing could be plainer?
Closely related, but distinguishable, is the question whether RPC 8.4(c) encompasses failure to disclose when it is reasonable to suppose that others are under a misunderstanding (not created by the lawyer) that disclosure would cure. The substantive law of intentional "fraud" or "misrepresentation" does, in some contexts, encompass a failure to disclose. The Restatement (Second) of Contracts, for example, defines circumstances when a misrepresentation is fraudulent, and its definition includes nondisclosure in specified cases.15 The federal securities laws make it fraudulent (and criminal) in connection with the purchase or sale of any security to "make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading."16
Several older opinions from the ABA Committee on Ethics and Professional Responsibility suggest that nondisclosure of information would violate the rule in some contexts, although in more recent opinions, the committee seems to have backed away from such a conclusion. In 1974, for example, the committee opined that it would violate the predecessor of RPC 8.4(c) for a lawyer to record a telephone conversation without the consent or prior knowledge of all participants even when it was lawful to do so.17 But the committee revisited that opinion in 2001 and withdrew it.18 Similarly, in 1978, the ABA concluded in Informal Opinion 1414 that it would violate the predecessor of RPC 8.4(c) for a lawyer to "ghostwrite" a pro se party's pleadings without at least the fact of legal assistance (but not the identity of the lawyer) being disclosed to the court or other parties.19 Relying on this ethics opinion and a handful of federal court cases, in 1998 a federal district court in California declared that ghostwriting by a lawyer in the case before it was "unprofessional conduct" but did not warrant finding the lawyer in contempt given that there were no clear rules on the issue.20 In 2007, however, the ABA committee revisited this issue, too, and reversed its position, taking the position that absent some state requirement of such disclosure or some affirmative misrepresentation to another relating to such assistance, nondisclosure would not violate RPC 8.4(c).21 On the other hand, in 1977 the committee issued another informal opinion, concluding that failure to disclose a "Mary Carter agreement" would violate the predecessor to RPC 8.4(c).22 The committee does not seem to have backed away from that conclusion.
Our Supreme Court has, to date, not resolved whether RPC 8.4(c) can be violated by omission. In the disciplinary case of In re Carmick,23 the Disciplinary Board concluded that attorney Carmick violated RPC 8.4(c) by omission when he communicated directly with an adverse party (whom he knew or should have known was represented by counsel) and failed to disclose to her that an amount representing interest on past child support had been deposited with the court. But the court expressly declined to decide whether the rule could be violated by omission, because it was satisfied that RPC 4.2 had been violated. "We conclude in this case RPC 4.1(a) and RPC 8.4(c) should not be expanded to achieve the same result."24
The interpretation and potential application of RPC 8.4(c) (or its equivalent in the CPR) has been particularly controversial in connection with covert activities by attorneys. Law-enforcement authorities have probably used undercover operatives to uncover illegal activities from time immemorial, and in modern times, prosecutors have authorized and supervised such covert operations. Private attorneys, however, have also been involved in such activities to document things like housing and employment discrimination or consumer fraud. The prevailing view is that such investigative activities are not prohibited by RPC 8.4(c) despite its literal breadth.25 In 2000, however, the Oregon Supreme Court attracted national attention when it reprimanded an Oregon lawyer for such covert "testing" under the version of RPC 8.4(c) then in force in Oregon on the theory that the rule means what it says.26 The decision induced the U.S. Department of Justice to file suit against the Oregon State Bar, seeking to enjoin it from applying the rule against federal prosecutors.27 Ultimately, however, the Oregon Supreme Court adopted an exception to RPC 8.4 that permits a lawyer
to advise clients or others about or to supervise 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 of Professional Conduct. "Covert activity," as used in this rule, means an effort to obtain information on unlawful activity through the use...
