The Legal Profession’s Muddled Standard For “Fitness To Practice”

OK, he has a temper, but hire him as your lawyer, and you can trust him with your life!

I confess: my profession’s standard for discipline bewilders me, and leads me to believe that nobody really knows what kind of conduct by a lawyer should dictate that he or she should be kicked out of the profession. I was reminded of this when I read a report about a former associate at a large New York law firm whose license was suspended for three years because he physically abused his girlfriend. A hearing panel had recommended a 60 day suspension, but the Appeals Court decided on three years.

Here is the basic rule regarding misconduct by lawyers, from the ABA’s Model Rules:

Maintaining The Integrity Of The Profession

Rule 8.4  Misconduct

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.

Tell me: which provision did the brutal lawyer violate? It must either be…

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

or

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Do any of these apply?

California, which is the only jurisdiction that doesn’t follow the ABA structure, has a similar standard that uses the vague and archaic term “moral turpitude.” In most states, that means a lack of trustworthiness as exhibited by a failure to pay debts, getting a dishonorable discharge from the military, lying under oath, perjury, and fraud. California seems to use a more expansive definition that includes acts…

“of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Certain crimes involve moral turpitude per se such as “crimes involving an intent to defraud as well as extremely repugnant crimes such as murder” while other crimes may involve moral turpitude based on the circumstances of a given case.

“The purpose of the moral turpitude inquiry enables the court “to identify those attorneys who are unfit to practice law, so that discipline can be imposed to protect the public, bench and bar from future misconduct.”

All right: why is a lawyer who beats up his girlfriend untrustworthy as a lawyer? I can see why the legal profession wouldn’t want to have someone who is violent and engages in criminal assault as a member, but is he necessarily untrustworthy? I don’t see why. Violence and dishonesty are two very different things, and not related at all. I would welcome a standard that states that a lawyer who disgraces his profession with criminal or otherwise despicable conduct should lose his right to practice, but attorneys fight such a standard tooth and nail. My favorite example: John Edwards, a lying, untrustworthy miscreant if ever there was one. Yet Edwards still has his law license, and will probably keep it if he’s not convicted of misusing campaign funds.

Lawyers, and professional ethicists, tell me that punishing Edwards professionally for “personal conduct” is “a slippery slope,” and only professional misconduct should count. Weeelllll, except for domestic abuse. Yes, yes, you could argue that running for President on an ethics theme while you are cheating on your cancer-stricken wife with someone your campaign is paying, then denying both the affair and the love-child it produced in statements to the press while making an aide pretend that the child was his might call into question a lawyer’s honesty, while punching your significant other only indicts a lawyer’s temper and self-control, but, well…Hey! What kind of dog is that?

Over the past twelve months, I have seen a New Jersey attorney merely reprimanded for forging a client’s name on a legal document (among other misdeeds), I have seen the New York bar refuse to punish another lawyer who admitted that as a prosecutor he colluded with opposing counsel to throw a trial; and I have seen an entire prosecutor’s office that conspired to convict an innocent man, sending him to prison for 18 years, escape bar discipline. Obviously, I have watched as John Edwards continues to keep his license, despite the creepiest conduct imaginable. And I would trust the man who beat up his girlfriend to handle my funds, my secrets and my legal needs far more than any of these. Wouldn’t you? Wouldn’t anybody?

I’m not saying that New York was wrong to take the license of the domestic abuser—I think lawyers who commit felonies in their private lives should be disciplined harshly. Three years for domestic abuse? Fine. But I’d like to see some consistency, and I’d like to see some honesty. The abuser isn’t being told that he can’t practice because he’s untrustworthy. He’s being disciplined because his personal conduct is so disgraceful that he embarrasses the legal profession by being part of it. If that’s the standard, John Edwards, and a lot of other lawyers, should be kicked out too.

3 thoughts on “The Legal Profession’s Muddled Standard For “Fitness To Practice”

  1. I think the problem with the legal profession, much like the medical profession, is that it’s lawyers and doctors who make the ultimate disciplinary decisions about other lawyers and doctors. And after all the years of schooling and the personal ego identification that goes along with the titles and professions there’s a (misguided) reluctance to judge one’s own too harshly. “There but for the grace of God go I …” or “It was wrong, but that doesn’t mean we should take away his/her right to make a living”, or “A written reprimand should be a wake-up call to deter this individual to not behave this way again” is too often the stand applied. Never mind that we’re talking about highly educated, presumably intelligent people (after all, they did go to college and graduate school and pass medical/legal boards) and they could, therefore, presumably get, I don’t know, SOME other kind of job.

    If you really want to scream, look into how long it takes BORIM (the Board of Registration in Medicine) in Massachusetts to take action against physicians in cases where the physicians don’t accept the recommendation of the Board and it goes to litigation. It takes YEARS. MANY YEARS. After all – when we’re talking about slapping a physicians wrist and ruining their reputation or, God forbid, taking away their hard-earned medical license, let’s err on the side of caution for the PHYSICIAN rather than on the side of caution for the hundreds of PATIENTS who may be put in harm’s way. (Unless they don’t pay taxes or child support on time. Then we can yank their license straight away. Of course – I’d rather be treated by someone who’s a little bit delinquent to Uncle Sam than someone who killed a patient by overprescribing narcotics, but that’s just me.) Meanwhile – these physicians can still practice medicine in all but the most egregious cases. And the list of complaints against some (I know of one case where a physician has several cases pending against him/her, comprised of several dozens of serious complaints dating back to 2008 or earlier) include charges involving inappropriate sexual relations with patients, writing prescriptions for narcotics to patients he/she has never met/treated, etc – and for this particular physician the cases are not expected to be resolved for AT LEAST several more years. Meanwhile – the physician has not been reprimanded, has not had his/her license suspended, still holds a valid MA physician’s license. Patient beware! But – how would that patient know? If you look up the physician’s profile on the Commonwealth of Massachusetts official website – you can see ti for yourself – this physician has NO HISTORY/RECORD OF ANY DISCIPLINARY ACTION BY THE BOARD FOR THE PAST 10 YEARS! The State of Mass website indicates this is a physician with a clean record. And if you know enough to dig deeper and ask BORIM to send you all closed cases against this Dr. they will – but the open cases (the ones tied up in litigation) are not a matter of public record yet. And BORIM isn’t allowed to tell you if there are any open cases. Only if you know enough to know this Dr. is under investigation and know that he/she has cases in litigation with DALA (Division of Administrative Law Appeals) AND also know that you can ask to see what they have in a public records request can you find out that maybe this is not a Dr. you want to have treating you. How is the public being protected/served during the years this is all being litigated? It isn’t! And did I mention – the physicians who sit on the BORIM review board are all paid by the State of MA – that’s right – tax payer dollars (not) being used to protect the welfare of taxpayer’s health. Scary, indeed.

    Frankly – I think this is FAR worse than the situation with lawyers not properly policing their own. With lawyers, public trust is at stake and (unfortunately) slimy lawyers cost some innocent people a lot of time, money and, on rare occasion, their freedom and lives. But physicians who are not appropriately policed have the potential to do much more damage to a much larger group of people on a daily basis.

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