Neighboring Misconduct Rules

Rule 8.4 gives each wrong its own paragraph, and one course of conduct can satisfy several of them. Paragraph (f), the subject of this chapter, forbids a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”¹ Paragraph (c) forbids “conduct involving dishonesty, fraud, deceit or misrepresentation.”² The two share no elements. Paragraph (c) asks whether the lawyer was dishonest and never mentions a judge, so it reaches a lie told to anyone. Paragraph (f) asks whether the lawyer knowingly helped a judge violate the judicial code or other law, and a lawyer can do that without saying anything false.

Four more paragraphs sit close enough to (f) to share its facts. Paragraph (a) reaches violations of the Rules of Professional Conduct, whether the lawyer commits them, assists them, or commits them through another.³ Paragraph (e) reaches a lawyer’s statement or implication of an ability to influence an official improperly.⁴ Paragraph (b) reaches a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness,⁵ and paragraph (d) reaches conduct prejudicial to the administration of justice.⁶ A stem about a lawyer and a judge may therefore call for any of them, or for several at once. Two questions sort them: what did the lawyer do, and whose violation, if anyone’s, did the act further? Help given to a judge’s breach of the judicial code or other law is (f). A lawyer’s own dishonest act is (c), and no judge need be involved. A breach of the lawyers’ own rules, by the lawyer or by someone the lawyer assisted, is (a).

One course of conduct can prove two distinct wrongs, so a complete answer names each paragraph the facts satisfy and the element that satisfies it. The subsections that follow take the neighbors in turn, beginning with paragraph (a), whose language of assisting comes closest to (f)’s.

Assisting Rule Violations

Rule 8.4(a) makes it misconduct 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.”⁷ That sentence offers four routes to one wrong: breaking the lawyers’ rules, trying to break them, helping or inducing someone else to break them, and breaking them by using someone else as the instrument. Every route ends in a breach of the Rules of Professional Conduct. Paragraph (f) differs on exactly that point. It also speaks of assisting, but it measures the violation by the judicial code or other law.⁸

The clause on acting through another matters because the Rules speak to lawyers. A lawyer who wants a forbidden result cannot obtain it by handing the forbidden step to someone the Rules do not bind, because the clause treats the delegation as the lawyer’s own violation. The supervisory duty in Rule 5.3 points the same way, directing managerial and supervisory lawyers to make reasonable efforts to ensure that nonlawyer assistants behave compatibly with the lawyer’s professional obligations.⁹

Rule 4.2 shows the clause at work. It bars a lawyer from communicating about the subject of the representation with anyone the lawyer knows to be represented in the matter, unless that person’s lawyer consents.¹⁰ The bar is written for lawyers, so a lawyer might hope to escape it by sending a nonlawyer investigator instead. Paragraph (a) closes that route: the lawyer who orders the contact violates the Rules through the acts of another.¹¹ Knowledge still counts. Rule 4.2 requires actual knowledge that the person is represented, although a lawyer may not close her eyes to the obvious.¹²

The mapping changes when the wrong belongs to a judge. A lawyer who knowingly joins a judge’s private discussion of a pending motion has helped someone else commit a violation, and that fact tempts a reader to choose paragraph (a).

The division follows from what each paragraph borrows. Paragraph (a) reaches only violations of the Rules of Professional Conduct, so help given to a judge’s breach of the judicial code needs a paragraph of its own, and that paragraph is (f). Whether the lawyer’s own conduct also breached the lawyers’ rules is a separate question that, if the answer is yes, would bring (a) back in. A complete answer ties each paragraph to the wrong it describes.

Claims of Improper Influence

Paragraph (e) makes it misconduct to “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.”¹⁴ Paragraph (f) concerns what a lawyer does for a judge. Paragraph (e) concerns what a lawyer says about the lawyer’s own power, and the statement is the forbidden conduct. The text names one operative act, stating or implying an ability, and two kinds of ability: to influence an agency or official improperly, and to reach results by means that break the lawyers’ rules or other law. Nothing in the text conditions the violation on the claim’s being true, on a client’s relying on it, or on an official’s ever acting. The violation is complete when the lawyer makes the claim.

Two words carry most of the analysis. To imply an ability requires no express promise: a lawyer who ties a promised result to a personal relationship with the decision-maker, rather than to the merits, conveys the claim as plainly as one who announces it. And improperly keeps the paragraph from reaching ordinary advocacy. A lawyer may describe experience before a court or skill at persuading on the law and the facts, because those work through the merits. Influence becomes improper when it runs through friendship, payment, or a violation of the rules. Knowing an official is not misconduct, and presenting the acquaintance as the reason the client will win is.

The difference between (e) and (f) shows up on a stem. Paragraph (f) asks whether a judge actually violated the judicial code or other law and the lawyer knowingly furthered the violation.¹⁵ Paragraph (e) asks only what the lawyer claimed. A stem that quotes a boast to a client therefore calls for (e), and it calls for (f) too only if something happened beyond the talk.

The usual error is to reason that because no judge misbehaved, the lawyer did nothing wrong. That reasoning fits paragraph (f), where the judge’s violation is an element, and it fails for paragraph (e), where the lawyer’s statement is the whole wrong.

The words spoken to the client are the same in both scenes, so the boast produces the same paragraph (e) violation each time. The only fact that moves is whether a judge actually violated the code, and that fact alone decides paragraph (f). Remove the boast from the second scene and the lawyer who passes the benefit still violates (f), with no claim of pull for (e) to reach. Remove the benefit and only the boast remains, which is the first scene.

Prejudice to Justice

Rule 8.4(d) makes it misconduct to “engage in conduct that is prejudicial to the administration of justice,”¹⁷ and paragraph (b) makes it misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”¹⁸ Both are defined by function rather than by a list of acts. Paragraph (d) asks what the conduct did to the justice system, and paragraph (b) asks what a criminal act shows about the lawyer. Facts that satisfy paragraph (f), where a lawyer knowingly helps a judge violate the judicial code or other law,¹⁹ will often satisfy (d) as well, and they will satisfy (b) when the help amounts to a crime.

The Maryland disciplinary decision in Attorney Grievance Commission of Maryland v. Sheinbein shows both paragraphs at work, although no judge was involved and paragraph (f) therefore did not apply.²⁰ The lawyer’s son had killed Mr. Tello and was a primary suspect in the murder investigation that Detective Hamill was conducting. The lawyer read the application for the warrant to search his house, which stated that it sought evidence “of the crime of murder”; he watched the search being executed and verbally agreed to alert the detective to his son’s whereabouts; and he knew, from his son’s own admissions, that his son was the killer.²¹ The court concluded that the lawyer had the specific intent to obstruct or hinder the investigation and probable arrest of his son by sending him to Israel.²²

The lawyer defended on intent. He said that he meant only to save his son from another man’s influence and from his son’s alleged threats of suicide, but the hearing judge did not find that account credible, and the court declined to disturb the credibility finding.²³ What remained was inference. The law presumes that a person intends the natural and probable consequences of his acts, so criminal intent may be inferred from the voluntary and knowing commission of a forbidden act.²⁴ The lawyer himself admitted that his son would “obviously” be on the run from an arrest warrant, although not yet “on the run officially,” and he brought his son’s passport to him in New York City, which suggested that his overriding concern was to help his son circumvent the law by absconding.²⁵ Intent, like knowledge in paragraph (f), is seldom announced, and a fact finder reads it from what the person knew and then did.

Paragraph (b) was satisfied because the conduct was a crime that bore on the lawyer’s trustworthiness. The hearing judge found that the lawyer’s actions satisfied the elements of the common law offense of obstructing or hindering a police officer and concluded that he had violated paragraph (b).²⁶ The court reasoned that a lawyer who ensures that a police investigation is thwarted, by sending a main suspect he knows to be the killer in a murder case to a distant country, necessarily reflects adversely on his trustworthiness.²⁷ It set the case beside earlier paragraph (b) decisions involving simple possession of cocaine, failure to pay income taxes, and domestic violence.²⁸ The crimes differ widely, which shows that paragraph (b) turns on what the act reveals about the lawyer rather than on the kind of crime.

Paragraph (d) gave the court a broader holding. It held that the thwarting of the investigation was prejudicial to the administration of justice regardless of the criminal nature of the lawyer’s acts, and it repeated that a lawyer is subject to discipline for conduct outside his role as a lawyer and that a criminal conviction is not a precondition for a violation of paragraph (d).²⁹ The lawyer acted as a parent rather than as counsel, and the court looked past that to the effect on the system. Instead of the detective completing his investigation, prosecutors considering charges, and a jury deciding the son’s fate, the lawyer “effectively usurped the role of twelve Maryland citizens and substituted it with his own paternal instincts.”³⁰ The son’s claim of self-defense changed nothing, because whether the killing was justified was for a jury to decide, not the lawyer.³¹ Because the lawyer removed his son from the process, the court observed, no one will ever know how the criminal justice system would have treated him.³²

Those same effects explain why a charge under (f) ordinarily travels with one under (d). A judge’s violation of the judicial code can damage the same sequence: a one-sided communication leaves the absent party unheard before the decision is made, and a ruling given in exchange for money replaces the merits with a payment.³³ A lawyer who knowingly supplies the other half of the judge’s violation takes part in that damage.

The overlap runs in one direction only. Paragraph (d) never requires that a judge have done anything wrong, so it reaches a lawyer’s interference with a case when paragraph (f) has no violation to attach to.

None of these paragraphs converts every professional mistake into misconduct. Paragraph (b) needs a criminal act that reflects on honesty, trustworthiness, or fitness, and paragraph (d) needs conduct that prejudices the administration of justice. The lawyer in the Maryland case stumbled into neither: the court found that he took intentional steps to help his son avoid the consequences of the crime and that he acted with specific intent.³⁴