Current through Register Vol. 38, No. 18, March 15, 2024
(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 that reflects adversely on the lawyer's
fitness as a lawyer;
(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;
(f) knowingly assist a judge or judicial
officer in conduct that is a violation of applicable rules of judicial conduct
or other law; or
(g) intentionally
prejudice or damage his or her client during the course of the professional
relationship, except as may be required by Rule 3.3.
Comment
[1] Lawyers
are subject to discipline when they 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, as when they request or instruct an agent to do so
on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from
advising a client or, in the case of a government lawyer, investigatory
personnel, of action the client, or such investigatory personnel, is lawfully
entitled to take.
[2] Many kinds of
illegal conduct reflect adversely on a lawyer's 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 offenses carry no such implication.
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. A lawyer's dishonesty, fraud, deceit, or misrepresentation is
not mitigated by virtue of the fact that the victim may be the lawyer's partner
or law firm. A lawyer who steals funds, for instance, is guilty of the most
serious disciplinary violation regardless of whether the victim is the lawyer's
employer, partner,
law firm, client, or a third party.
[3] The purpose of professional discipline
for misconduct is not punishment, but to protect the public, the courts, and
the legal profession. Lawyer discipline affects only the lawyer's license to
practice law. It does not result in incarceration. For this reason, to
establish a violation of paragraph (b), the burden of proof is the same as for
any other violation of the Rules of Professional Conduct: it must be shown by
clear, cogent, and convincing evidence that the lawyer committed a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as
a lawyer. Conviction of a crime is conclusive evidence that the lawyer
committed a criminal act although, to establish a violation of paragraph (b),
it must be shown that the criminal act reflects adversely on the lawyer's
honesty, trustworthiness, or fitness as a lawyer. If it is established by
clear, cogent, and convincing evidence that a lawyer committed a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as
a lawyer, the lawyer may be disciplined for a violation of paragraph (b)
although the lawyer is never prosecuted or is
acquitted or pardoned for the underlying criminal act.
[4] A showing of actual prejudice
to the administration of justice is not required to establish a violation of
paragraph (d). Rather, it must only be shown that the act had a reasonable
likelihood of prejudicing the administration of justice. For example, in State
Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified on other
grounds, 304 N.C. 627, 286 S.E.2d 89 (1982), the defendant was disciplined for
advising a witness to give false testimony in a deposition even though the
witness corrected his statement prior to trial. Conduct warranting the
imposition of professional discipline under paragraph (d) is characterized by
the element of intent or some other aggravating circumstance. The phrase
"conduct prejudicial to the administration of justice" in paragraph (d) should
be read broadly to proscribe a wide variety of conduct, including conduct that
occurs outside the scope of judicial proceedings. In State Bar v. Jerry Wilson,
82 DHC 1, for example, a lawyer was disciplined for conduct prejudicial to the
administration of justice after forging another individual's name to a
guarantee agreement, inducing his wife to notarize the forged agreement, and
using the agreement to obtain funds.
[5] Threats, bullying, harassment, and other
conduct serving no substantial purpose other than to intimidate, humiliate, or
embarrass anyone associated with the judicial process including judges,
opposing counsel, litigants, witnesses, or court personnel violate the
prohibition on conduct prejudicial to the administration of justice. When
directed to opposing counsel, such conduct tends to impede opposing counsel's
ability to represent his or her client effectively. Comments "by one lawyer
tending to disparage the personality or performance of another...tend to reduce
public trust and confidence in our courts and, in more extreme cases, directly
interfere with the truth-finding function by distracting judges and juries from
the serious business at hand." State v. Rivera, 350 N.C. 285, 291, 514 S.E.2d
720, 723 (1999). See Rule 3.5, cmt. [10] and Rule 4.4, cmt. [2].
[6] A lawyer may refuse to comply with an
obligation imposed by law upon a good faith belief that no valid obligation
exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the
validity, scope, meaning or application of the law apply to challenges of legal
regulation of the practice of law.
[7] Lawyers holding public office assume
legal responsibilities going beyond those of other citizens. A lawyer's abuse
of public office can suggest an inability to fulfill the professional role of
lawyers. The same is true of abuse of positions of private trust such as
trustee, executor, administrator, guardian, agent and officer, director or
manager of a corporation or other organization.