I Wasn't Even Supposed to Be Here Today: Professional Conduct During Your Time Off

(Note to self: I really need to find better free clip art.)

Years ago, in law school, I wrote this in my “ethics journal” (which I found tedious at the time and here I am, ethics journaling for the world to see):

This does make me wonder: Are attorneys bound under the Model Rules or their state equivalents if they’re not actively engaged in the practice of law but in a position where their legal knowledge and training influences their work? I would assume that if I worked as a lawyer during the day and decorated cakes by night, I wouldn’t be bound by the same rules in both jobs.

I couldn’t tell a cake client about a law client, but I could tell a law client about a cake client (as there’s no Bakers Model Rule 1.6, though a contract might state otherwise). I could date a cake client, not so much a law client (Model Rule 1.8(j)). But these fields are unrelated—what about if I was employed as a state senator or an accountant or a CEO? Knowledge and skills carry over.

I’m not sure if I got an answer to that question later on in the course or if it was something not covered, but I do know I get this question a lot. Can I be disciplined professionally for off-duty conduct?

The answer is, of course (say it with me) it depends.

Some Rules of Professional Conduct (Wisconsin here, ABA here, links are to Model Rules) are rules applicable only to law practice —the duty of diligence, for instance, applies to getting back to clients and abiding by court deadlines, but you can’t be sanctioned for being late to choir practice or not calling your significant other back in a timely fashion (as much as your significant other might appreciate that). Or, you may have a duty to notify opposing counsel if you ended up with a privileged email because counsel tried to email their client James Smith and their software auto-completed your name Jamie Smallwood. But you don’t have that same duty to notify someone who misdirects a personal text or email to you (though letting someone know that you were not in fact their Tinder date last night is probably a courteous thing to do). And, yes, you can talk about your baking clients to your law clients, but not the other way around.

Though, note, some of these rules apply when lawyers are pro se litigants or clients of other lawyers—for instance, if you bring a frivolous claim on your own behalf, or make false accusations against judges, you may be subject to discipline even though you weren’t representing a client at the time. (In other words, you’re a lawyer, you should know better.)

My question about being a CEO or accountant or state senator (second note to self: look up who the state senator/lawyers were in December 2008 so I can figure out who I was talking about) was a good one—and, yes, it depends. Lawyers are bound to the Rules if they engage in law-related work for clients such as accounting, financial planning, title services, etc. that aren’t clearly distinguished from practice; if, however, they’re operating entirely separately and that’s clear to the client, then the Rules applicable only to law practice don’t apply. A state senator may be engaging in some activities that could be considered law-related work, but isn’t doing so for a client, so they are not bound by these Rules (though they likely have their own ethical codes per their office). (Third note to self: Bloggers, while not performing law-related work as that term is defined in the Rules, are bound by the Rules, particularly with regard to communications about one’s services, confidentiality, and honesty.)

Wisconsin also prohibits lawyers from engaging in “offensive personality” (I know, non-lawyers, stop snickering), which we’ve already discussed. To sanction a lawyer for offensive personality, there needs to be some nexus between the conduct and the practice of law or a lawyer’s fitness to do so.

But some Rules are, colloquially, “24/7 rules” that do regulate off-the-job conduct and are equally applicable to the lawyer who happens to be a senator, a CEO, or just at the Packers game without your lawyer hat. The big ones here are found in 8.4—lawyers are prohibited from engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation; as well as from criminal conduct that reflects adversely on a lawyer’s character or fitness to practice law.

Still, even here, there are exceptions:

[2] Many kinds of illegal conduct reflect adversely on 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. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. 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.

(Comment 2 to Model Rule 8.4.) Enforcement of these 24/7 rules is going to vary widely by state; I note that some states such as New York automatically disbar people convicted of felonies, period. Other states may impose minimal discipline—in Wisconsin, felonies involving drunk driving or possession of narcotics may lead to reprimands or diversion to alternatives to discipline, absent serial convictions or other factors, where in New York disbarment would be automatic no matter what.

So, in sum—”Can I be disciplined professionally for off-duty conduct?” Yes, if that conduct falls under a 24/7 rule such as those prohibiting dishonesty, misrepresentation, or criminal acts reflecting adversely on one’s character, or if you’re performing “law related” work that isn’t clearly separate from your law practice. But, lack of behaviors like diligence, communication, competency or confidentiality in other aspects of your life should not lead to discipline.