Talking Honestly About Honesty (When You Can't Really Talk About Government Ethics)
Yesterday, I (and several of my nerd friends, as it would turn out) spoke with Benjamin Penn for an article that ran today in Bloomberg Law about outgoing US Attorney Rachel Rollins, who was found by the Department of Justice’s inspector general to have engaged in wide-ranging violations of government ethics rules. I am not an expert in federal government ethics, far from it, so I stuck to the disciplinary implications of the alleged misconduct.
Relevant here, and to my quote that ran with the Bloomberg story, was that Rollins was found to have falsely testified, under oath, during the investigation of her other conduct (including leaking sensitive information to the press, and potential violations of the Hatch Act). I told Mr. Penn that “Bar regulators, in general, they’ll get their hackles up about any sort of dishonest conduct that has any nexus with the practice of law.”
What did I mean by “nexus with the practice of law?” “Nexus” is my term, not in the Rules. (This is what happens when a reporter calls me to talk and I try to sound smart.) “Dishonest conduct” is regulated by Rule 8.4(c) (SCR 20:8.4(c) in Wisconsin) and others. The Rule prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and is a so-called "24/7" rule--it doesn't matter if you're representing a client, or at work at all.
Now, most cases involving 8.4(c) do involve engaging in dishonest conduct with a client, a court, or otherwise within the practice of law—the laundry list of annotations (click SCR 20:1.8 in the table of contents and then scroll to the annotation) to the Wisconsin law lay this bare.
That said, and while I can't speak for the regulators (like our Office of Lawyer Regulation), generally, dishonest conduct that is purely personal will not be the subject of discipline. And, let’s face it—we all lie, to varying degrees. We all tell lots of little lies. ”Sure, we'd LOVE to look at pictures of your trip to the Museum of Traffic Cones”; “the Elf on the Shelf went to live on an Elf Farm where he can run free all day”'; “sure I floss.” Some of us tell big ones, the kind that lead to divorce or other family estrangement. And while those lies, of course, aren’t good, regulators tend to stay out of it.
Sure, if the personal dishonesty bleeds into criminal behavior, or involves financial malfeasance, that’s a different story—take this example involving a bigamist lawyer who, I believe and fervently hope, is not related to me. I am speculating here, but I would assume that if all he did was lie about his marital status to attract a woman, I never would have heard about him (related or not). But the lying to the Jamaican government and breaking the law was the bigger issue. The New York Court did remark that the fact that this was a violation involving his personal life “did not necessarily warrant a sanction less severe than suspension,” but the other examples the court gave—involving misconduct in the course of a personal real estate transaction; a case involving domestic violence; and a case that was not linked that involved “deceiving the landlord of a rent-controlled apartment by submitting rent checks purportedly bearing the signature of the respondent's deceased sister[.]” Violations of SCR 20:8.4(c) in Wisconsin have been found in cases involving failure to file tax returns and pay taxes income that was not reported.
These types of violations do have a “nexus” to law practice, at least from my perspective. They do adversely reflect on one’s character to practice law. I know reasonable minds differ on whether lying about, say, marital infidelity (when not under oath, anyway) should be grounds for professional discipline. I think it would be counter-productive, and potentially harmful. Sometimes, angry exes and estranged family members use the disciplinary system as revenge, or to continue a form of contact or abuse.
And for the smaller issues? I would hope the regulators would be unconcerned that our doctor that we limit our red meat intake to one portion the size of a deck of cards per week or that we’ve got an Instagram full of tooth fairy photos. In a world when prominent public figures are accused of serious violations, nobody has time for that.
