III. RPC 8.4: MISCONDUCT
RPC 8.4 is a collection—some would say "catch-all"—of prohibitions that have been placed here because they are of general applicability to all lawyers, regardless of type of practice or context. But this does not set it apart from other rules that we have considered in previous chapters, such as confidentiality rules (Chapter 6) or advertising rules (Chapter 11), which have similar applicability. The nominal title for RPC 8.4, "misconduct," could just as easily be applied to all the rules in the code, and so it tells us nothing. The first six subsections, (a) through (f), were carried over from the 1983 ABA model rules verbatim and have not been changed since then, with one minor exception in RPC 8.4(e). The ABA added to the model rule the words "or to achieve results by means that violate the Rules of Professional Conduct or other law" in 2002, and Washington carried them over to its rule in 2006 along with all the ABA comments, as revised through 2003.35
Subsections (a), (c), and (d) are substantially the same as sections of the prior CPR, DR 1-102(A). Subsection (e) is substantially the same as former DR 9-101(C). Subsections (g) and (h) are of recent origin and have no parallel in the ABA model rules or the CPR. Subsections (i) through (n) were added to Washington RPC 8.4 effective in October 2002.36 They have no parallel in the ABA model rules either, but they are not new. They were moved into RPC 8.4 from RLD 1.1, where they had long existed as additional grounds for discipline. As explained by the Discipline 2000 Task Force, which recommended the change as part of a comprehensive rewrite of the Rules for Lawyer Discipline (which yielded the current ELC), "[t]his language is being moved to the RPCs to consolidate all of the substantive rules related to lawyer conduct that constitute grounds for discipline, with no substantive change."37 Interestingly, a number of these sections moved from the RLD had equivalents in the CPR. DR 1-102(A) (3), for example, prohibited "illegal conduct involving moral turpitude" (compare RPC 8.4(i)), and DR 1-102(A)(6) prohibited conduct that "adversely reflects on ... fitness to practice law" (compare RPC 8.4(n)). This heritage is important in researching decisions in which the courts have interpreted these precursors to the provisions of RPC 8.4.
Before examining the subsections of RPC 8.4 in detail, we wish to make two important general points about the rule, which are interconnected. The first is that most of the sections of this rule are not limited to lawyers' representation of clients. Only RPC 8.4(h) is so limited. This leads to the second point: the prohibitions in this rule are without question the most general and sweeping, and in some cases also the vaguest, of any in the ethics code. They have often been relied upon by disciplinary officials and courts when there was no rule in the ethics code that specifically addressed the misconduct in question, or when they were thought to add additional weight to a violation of some other rule. In the discussion below, we will have occasion to comment on the generality of some of these subsections and their application to conduct that occurred outside the practice of law.
| Author's Commentary |
The ABA comments to MRPC 8.4 do not comment on the dangers of such general "catch-all" provisions, but the comments to the Restatement do. Although such provisions may be useful to cover a "wide array of offensive lawyer conduct" not otherwise addressed and "to prevent attempted technical manipulation of a rule stated more narrowly," they nonetheless carry "the risk that a charge using only such [general] language would fail to give fair warning of the nature of the charges to a lawyer ... and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it."38 The notice problem was, we believe, even worse in Washington when there were broad substantive prohibitions contained in the Rules for Lawyer Discipline that were not reflected in the Rules of Professional Conduct. That problem has been remedied by transporting the substantive provisions of RLD 1.1 into the RPC, where they can and should be read carefully by every lawyer in the state. But moving these provisions into the RPC does not cure the vagueness and breadth problems. On the contrary, their relocation should make the substantive potency of these prohibitions even more obvious. We think that some of the vague and broad provisions now found in RPC 8.4 should be abandoned (as they have been abandoned by the ABA and the Restatement). We will comment on these in examining the specific subsections. The comments to the Restatement go on to suggest some guidelines to constrain the use of the catch-all provisions that we think make a good deal of sense. First, they suggest that "lawyer conduct that is made permissible or discretionary under an applicable, specific lawyer-code provision" should not be considered a violation of a more general provision "so long as the lawyer complied with the specific rule."39 Second, "a specific lawyer-code provision that states the elements of an offense should not, in effect, be extended beyond its stated terms through supplemental application of a general provision to conduct that is similar to but falls outside of the explicitly stated ground for a violation."40 Third, tribunals "should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code."41 Whether these guidelines ft comfortably with the sweeping prohibitions that have been brought into the Washington RPC from the RLD remains to be seen. We will have more to say about that below. Nonetheless, we think these are important and useful guidelines that should be followed in Washington in applying RPC 8.4 in the future. |
A. RPC 8.4(a): Violation of the Rules of Professional Conduct
RPC 8.4(a) provides that it is professional misconduct for an attorney to "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." The rule thus prohibits not only violating the other rules, which need not have been said, but also attempting to do so, which did need to be said. It also prohibits violations "through the acts of another" and knowingly assisting or inducing another to violate or attempt to violate the rules. In other words, incomplete and indirect violations as well as attempts are, themselves, made violations. Washington's RPC 8.4(a) is identical to the model rule. The CPR did not reach attempts and reached indirect violations only by prohibiting the "circumvention" of a rule through the acts of another.42 The Restatement has adopted a provision substantially identical to RPC 8.4(a).43
The two most important aspects of RPC 8.4(a) are that it brings both attempted violations of the rules and indirect violations of the rules through others within the reach of disciplinary authorities. There are not many disciplinary decisions on either of these points, but their potency should not be underestimated. Those cases that we have, discussed below, make clear that these aspects of the rule will be used when appropriate.44
In In re Huddleston,45 a lawyer ran a fraudulent telemarketing magazine subscription and renewal company in which he fraudulently obtained publishers' subscription lists and then fraudulently induced subscribers to renew their subscription through his company. The court noted that Huddleston's violation of the rules occurred entirely outside the practice of law but was nonetheless subject to discipline under RPC 8.4.46 It concluded that Huddleston had not only violated those sections of RPC 8.4 prohibiting dishonesty and criminal conduct that reflected adversely on fitness to practice and violated his oath of office, but that he had also violated RPC 8.4(a) by "attempting" to continue his illegal operation after being asked to stop by publishers.47 While the court did not say so in so many words, it seems clear that Huddleston was also violating the rules indirectly by means of those he hired to do his telemarketing, also prohibited by RPC 8.4(a). Huddleston was disbarred.
In another case, a lawyer named Haskell was found to have violated RPC 8.4 by fraudulently charging clients for legal work that other, more junior, lawyers in his office had done; by fraudulently billing clients for airfare that was more expensive than what they had agreed to cover, or more expensive than he had actually used; and by fraudulently charging clients for personal expenses.48 At least in the case of the fraudulent airfare charges, Haskell accomplished his purposes through others in violation of RPC 8.4(a), because he induced a travel agency to supply him with phony invoices.49 He was suspended for two years.50
| Author's Commentary |
The law of attempts has a long history in the criminal law. The comments to the Restatement make this valuable observation: As with the charge of attempt in criminal law, disciplinary bodies must determine that the proof presented sufficiently demonstrates that the lawyer had the requisite intent, that the lawyer took a substantial step in a course of conduct planned to culminate in the lawyer's commission of the offense, and that evidence concerning that step is as a whole strongly corroborative of the lawyer's purpose.51 |
B. RPC 8.4(b): Criminal Acts
RPC 8.4(b) makes it professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
This is identical to the model rule. As noted in Chapter 10 (Candor), the portion of this rule relating to "honesty" is particularly useful to the disciplinary counsel...
