Attorney Misconduct & Discipline

Episode Notes

Transcript

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Leslie C. Levin: I think that the damage that they did to the profession is probably less than the damage that they might have done to trust in the election electoral process, which is also important, very important. And that’s actually what I worry about, is that they have done a lot of damage to people’s beliefs that elections are run fairly and that courts handle them fairly. And if people lose faith in that process, then I think democracy is going to be in some danger.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk network. I’m Craig Williams coming to you from Southern California. I write a blog named “May It Please the Court” and have two books out titled “How to Get Sued” and “The Sled.”  Rule 8.4 of the Model Rules of Professional conduct that deal with misconduct is subtitled with the phrase Maintaining the Integrity of the Profession.

When attorneys engage in unethical behavior, it’s believed that their actions harm the industry. As such, disciplinary procedures are a key feature to maintaining the legitimacy of not only the profession, but also the legal system as a whole. Usually, attorney disciplinary matters don’t enter into the broader public discourse, but in the wake of the 2020 presidential election, we have seen a significant increase in high profile attorney disciplinary matters.

In fact, attorneys like Rudy Giuliani and John Charles Eastman, and the disciplinary charges brought against them in D.C. and California have been featured prominently in the news of late. So it’s time we turn our attention to the issue of attorney misconduct and discipline. So let’s explore what causes attorneys to commit ethical misconduct and what kind of processes exist to discipline the perpetrators. Today on Lawyer 2 Lawyer, we’re going to discuss attorney discipline. We’ll take an overall look at the prominent attorneys who have come under fire for their violation of the rule of law and measures taken to regulate those attorneys’ actions and the consequences that could stem from their actions.

To help us better understand this issue, we’re joined today by Professor Leslie Levin. She’s a Professor of Law at the University of Connecticut School of Law in Hartford, Connecticut. She’s an expert in the legal profession of ethical decision making and lawyer regulation. She’s also the co-editor with Lynn Mather of the book “Lawyers in Practice: Ethical Decision Making and Context.”  Welcome to the show, Leslie.

Leslie C. Levin: Thank you so much.

J. Craig Williams: Let’s give our listeners, mostly lawyers, I think, who are interested in this subject, especially now, given what’s going on, kind of a little background in ethics. Why it’s important, how it came to be, and a little bit about your expertise.

Leslie C. Levin: Well, lawyer ethics are important for several reasons, most notably so that the public is protected from lawyers who might take advantage of clients. It came to be because, interestingly, because lawyers recognized the need for an ethical code so that they could call themselves a profession. And so, the lawyers’ ethical codes have been around for more than 100 years. My own work focuses on why lawyers make the decisions that they make in practice, the many factors that affect them. And I also look at how lawyer regulation works. And I will say the lawyer regulation is pretty imperfect, partly because it’s lawyers themselves who have a large hand in how it works.

J. Craig Williams: Yeah, we’ve certainly been going through that out here in Southern California, where I live, we’ve had an attorney recently disbarred for allegedly stealing millions of dollars from clients. So how does money play into the whole aspect of ethics?  I know when I’ve been in large law firms, the consideration is always, well, this is a big client. How do you deal with that?

Leslie C. Levin: Well, money is a big issue in legal ethics and it’s the primary reason why lawyers are disciplined. I believe you’re referring to Mr. Girardi in California. And yes, that’s a terrible situation. Lawyers often are required or asked to hold money for clients, and it’s tempting for some lawyers to take that money and use it themselves.

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Often they think they’re just borrowing the money and they’ll pay it back, but in fact, that doesn’t happen and then they continue to do it. Money is also an issue when it comes to billing, for example. And so there can be a temptation to overwork a case if someone’s working on an hourly basis and being paid, I should say being paid on an hourly basis. Money is also an issue when lawyers are paid on a flat fee basis because then they don’t have the incentive to work quite as many hours in order to get a result for a client. So money is a big issue when we talk about legal ethics, but certainly not the only one.

J. Craig Williams: How do you divorce yourself from the consideration of money when you’re making an ethical decision?

Leslie C. Levin: I think if you start with the premise that that is what a lawyer is expected to do, they are expected to be loyal to their clients. They have a fiduciary duty to their clients. And you really don’t need to know very much about lawyer ethics to know that you’re not supposed to steal from people. When it comes to taking money from clients, it should be a no brainer.

But what happens is lawyers sometimes get into situations, particularly in middle age, when they have money problems. They owe money on their mortgages they may owe money to ex-spouses and they need it. They pay for college and they just take it. But lawyers who remember the basic rules of even you take the Ten Commandments, you don’t steal, they will know that that’s not the way they get their money. In terms of the billing also, I think that there are some lawyers who understand that their duties are to their client and you just are not supposed to do that. And I think the majority of lawyers are able to follow that basic premise, but not everybody.

J. Craig Williams: Well, when a client is upset or believes that they haven’t gotten the money, they typically file a complaint. What type of lawyer regulation exists to stop this kind of thing?

Leslie C. Levin: To stop the taking of money?

J. Craig Williams: Right. Well, you have a trust account, for one thing. You’re accountable to the state bar for that. Recently, here in California, we’ve increased significantly the attestations that you have to make in front of the state bar if you have an (00:07:20) account so it’s become a bit more serious.

Leslie C. Levin: Yes. If there have been some mechanisms that have been put in place to try to discourage lawyers from taking money, some jurisdictions, and I think California may be among them, has random audits of trust accounts. So theoretically, lawyers should be deterred from taking money because there’s the possibility that they’ll be audited. Some jurisdictions require lawyers just to promise or swear that they are following the trust account rules.

I think most jurisdictions have rules that require banks to let the disciplinary authorities know if a check is bounced from a client trust account. So that’s another way to detect and another way to deter lawyers. And then there’s the disciplinary system itself. People can make complaints if they think that money has been taken and the disciplinary process will investigate it. Unfortunately, the disciplinary process doesn’t give clients their money back, usually. And so, if people want to recover stolen money, if the lawyer has spent the money, which is often the case, their only recourse is to go to a client protection fund, which will reimburse them for part of the money, but often doesn’t have the funds or has caps on the recoveries so clients do not recover all of the funds that they’ve lost due to the lawyer theft.

J. Craig Williams: Money is not the only issue that we deal with in legal ethics. Recently, here in the political arena, we’ve had some issues with swearing to uphold the Constitution. We’ve had some significant charges levied against Rudy Giuliani as well as John Eastman. How do the ethical proceedings go in these cases where you have a completely unrelated issue to money?  You’ve got whether or not the Constitution is an open question, I guess, at this point.

Leslie C. Levin: So those cases are really novel cases and in some respects complicated cases and in somewhat different cases. Although, of course, they both come out of the situation with how the post 2020 presidential election was discussed by the President Trump and by others. So in the case of Rudy Giuliani, the grievances were filed against him both in New York and in the District of Columbia, where he has admitted to practice. The focus of those grievances is actually different in the two jurisdictions.

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One, in DC, it’s very limited to representations or misrepresentations that Mr. Giuliani made to a Pennsylvania Court. In New York, the allegations are broader and have to do with a whole series of activities that Mr. Giuliani engaged in while he was representing former President Trump.

And then the Eastman situation in California is newer and interesting and it’s because of the representations that he made partly in litigation and about fraud and also arguments that he made to former Vice President Pence to try to persuade him not to accept the slates of electors on January 6 and to delay the counting of the electors for some undetermined later date so that the states could supposedly investigate whether there had been fraud in the election. So the facts are a little bit different, but they are novel because they come out of what are essentially political disputes, and a large part of them focus on at their core, they are about efforts to undermine the democratic process.

J. Craig Williams: Well, Leslie, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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And welcome back to Lawyer 2 Lawyer. I’m joined by Leslie Levin. She is the Professor of Law at UConn School of Law in Hartford, Connecticut. Leslie, we’ve been talking about ethics as it relates to John Eastman. And just to flag for some of our listeners, John Eastman has been a guest on this program. So hit the search bar and have a listen to one of those old ones. As far as I’ve read, Leslie, there are like eleven charges that have been filed against Professor Eastman or at this point, and I’m not sure what title is appropriate to use, but that he’s engaged in a course of conduct to assist President Trump in executing an entire strategy that’s not supported by the facts or law. Where does the line go ethically in terms of arguing a point that’s not in the law, but you have a reasonable belief that it should be that way. Where did Eastman cross that line?

Leslie C. Levin: So it’s fine to make a novel argument as long as you have a good faith belief – it’s a good faith attempt to change the law, and it’s okay to argue facts that you don’t know for sure, but you have a good faith belief that you have the evidence or that you’re going to find the evidence. I think the theory of the case against John Eastman is that he knew that the legal arguments that he was making were bogus, that the arguments he was making were totally unsupported by the law and that his legal arguments just didn’t hold up and that the facts he was alleging he knew not to be true. And so that’s where he crossed the line is because he knew that what he was saying wasn’t correct and he was doing it basically to mislead the people who were listening to him.

J. Craig Williams: In the introduction, we talked about the Model Rules of Professional Conduct and Rule 8.4 being that you maintain the integrity of the profession. What kind of damage did Rudy Giuliani and John Eastman do to the integrity of the profession?

Leslie C. Levin: Well, it’s a little bit hard to say. And the truth is that for a long time, maybe as long as there have been lawyers people have not necessarily thought highly of them. The public has a love hate relationship with lawyers. So what did they do themselves in terms of the profession and how it’s viewed?

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I don’t know. It’s hard to judge. You can say the same thing about Avenatti who was also in the public sphere for quite some time. I think that the damage that they did to the profession is probably less than the damage that they might have done to trust in the electoral process which is also important, very important. And that’s actually what I worry about is that they have done a lot of damage to people’s beliefs that elections are run fairly and that courts handle them fairly. And if people lose faith in that process then I think democracy is going to be in some danger.

J. Craig Williams: Let’s talk about a fine point in terms of discipline and that being the attorneys who are being sanctioned as opposed to the attorneys who are being disciplined. Sanctions, as I understand it, mean that you’re being ordered by the court to pay a particular sum of money either to the court or to opposing counsel for some type of bad behavior. And attorney discipline is the type of discipline that’s handled by the governing bodies within each one of the states. But how are sanctions distinguished from attorney discipline other than that kind of generality that I just gave?

Leslie C. Levin: So I just want to may be tweak your definition a little bit. The penalties imposed in the discipline process are sometimes also referred to as sanctions. But I think what you’re talking about in court are things like what we call Rule 11 sanctions or other kinds of money penalties which, although there can also be other kinds of penalties that the courts imposed directly.

In the discipline system it’s usually not about money. It’s usually about what we call expressive punishments meaning an admonition or a reprimand which expresses disapproval or a different kind of sanction like a disbarment or suspension which is basically an incapacitating sanction. In other words, people can’t practice law. So in that way it runs much more like the criminal system.

J. Craig Williams: Do you think that ultimately an attorney like John Eastman is going to be disbarred by California?  From the charges, it seems like there’s no way out.

Leslie C. Levin: I think it’s a complicated case. It’s hard to say. I think some of the claims are going to be harder to pursue than others. But will there be anything that sticks?  My guess is that the misrepresentations that he made as a lawyer to the courts will give rise to abasis for imposing sanctions, and maybe the misrepresentations that he made to Vice President Pence will do that. It’s less clear to me that the statements that he made on January 6 to the crowd before it went to the Capitol will give rise to the same finding that there was misconduct. It’s complicated.

I’m not clear on January 6 if he was acting as a lawyer for a client, which you don’t necessarily have to do, but there’s I think, also some First Amendment issues that may come up there so it’s hard to give you an answer. I can’t tell you that they’re all going to stick, but my guess is that you’re right that some of them will stick. Now, will it be a disbarment or a suspension?  Not clear, or for how long if it’s a suspension, not clear. I guess if I had to put money on it, it would probably be a suspension. Courts generally don’t disbar, except for fairly extreme cases. And I’m not saying that the conduct that John Eastman engaged in wasn’t very serious, but I do wonder whether they’ll go as far as a disbarment. My guess would be suspension.

J. Craig Williams: Well, what does qualify as an ethics violation?  When an attorney has a decision about, say, representing a client against perhaps a former client, how do those situations arise, and how do you deal with them?

Leslie C. Levin: There’s all kinds of ways in which lawyers can violate the ethical rules, so conflicts of interest is one of them. When a lawyer, for example, represents a client against a former client and uses information that they obtain from the former client to benefit the new client or the lawyer somehow benefits themselves, lawyers can be disciplined for neglecting cases or not communicating with their clients, basically for months, for example, not checking in with the client.

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And when the client is desperate to know what’s going on, lawyers can be disciplined for committing crimes or, as I said before, taking money. Certainly they can be disciplined for lying to the court and even for making misrepresentations to third parties overreaching with unrepresented client, with unrepresented individuals. There’s really a pretty long list, and as you know, the whole course can be taught on that topic.

J. Craig Williams: Right. And little can we cover it all in less than half an hour. It’s time to take another quick break to hear a word from our sponsors. We’ll be right back.

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Welcome back to Lawyer 2 Lawyer. I’m back with Leslie Levin. We’ve talked about a wide-ranging realm of possible ethical violations, but what I wanted to zone in on was a lawyer’s duty to a third party. Let’s say that you have a situation, and I don’t know if I’m here asking fora friend in this situation, but pretty close. You have an attorney who’s been subpoenaed and is required to produce documents to the opposing party, but that attorney has a family member who the documents are about. How do you deal with that situation in terms of protecting the privacy rights of the family member, your role as a family member attorney, and then a third party on the outside?

Leslie C. Levin: If the lawyer can’t act like a lawyer and do what they’re supposed to do in terms of complying with the subpoena, then they probably should get someone else to represent the family member. There’s no justification or there’s no excuse under the Model Rules for a lawyer who is representing a family member to do anything other than what an ordinary lawyer would do under those circumstances. So if there’s a concern about confidential information, they can go to the court and argue that it shouldn’t be revealed. They can try to get a protective order so that the other side can’t reveal it to anyone else, but they can’t refuse to disclose the information and not reveal that they are refusing to reveal the information. In other words, not disclose, but not tell the other side that they have the documents. They can’t do that or anything else that would be deceptive to the other side.

J. Craig Williams: I have got another, for instance, for you that’s probably more classical than anything else. Large law firm attorney in the large law firm becomes aware of unethical conduct by a fellow partner or an associate in the firm. Is there a duty to report the unethical conduct, and if so, how do you go about doing it?

Leslie C. Levin: In most jurisdictions, there is a duty to report. In California, where I know you are, there is not currently a duty to report. I know that there’s been talk about adopting what we call Rule 8.3 for those jurisdictions that follow the Model Rules. In those cases, yes. If it’s something that raises a substantial question about the lawyer’s trustworthiness or fitness to practice law, the lawyer has an obligation to report that information, typically to a disciplinary committee.

J. Craig Williams: I’ve noticed here in the California courts, it’s been the rule for a long time that if you are sanctioned by a judge for a discovery violation over a thousand dollars, you’re required to report yourself to the state bar. Is that a common requirement among the states or is that — I forget myself whether it’s in the Model Rules?

Leslie C. Levin: That is not common. And it’s a great idea because a lot of times — because basically disciplinary authorities are generally underfunded and they only respond to I shouldn’t say only, but almost always only respond to matters that are brought to their attention. And so that requirement would bring to their attention that there’s been a problem of inappropriate conduct in the courts. But I don’t think that that is a common requirement in many other jurisdictions.

J. Craig Williams: And last but not least, before we have to wrap things up, let’s talk about judicial ethics and judicial conduct. We currently have a situation going on in the United States Supreme Court where there seems to be no holds barred.

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What are your thoughts about what’s happening?  Is there a requirement for those judges to recuse themselves with cases that they may have an interest in?  What kind of ethical obligations do our Supreme Court have to live with?

Leslie C. Levin: So, unfortunately, there is no ethics code that governs the United States Supreme Court Justices, and there has been an effort by Congress to prod the Supreme Court to create rules of ethics. But in recently, very recently, in fact, I think within the last two days, the American Bar Association called on the Supreme Court to create a code of ethics for itself, and it has resisted doing so up till this point. And I think it’s a real problem because it undermines confidence in the court when it doesn’t seem to abide by any rules of ethics. And every justice can decide on his own or her own how he or she is going to handle an ethical issue. And this includes recusal as well as other potential ethical issues.

J. Craig Williams: Right now, Federal Circuit Court judges have a code of ethics that they’re required to comply with. Why doesn’t that apply to the Supreme Court?

Leslie C. Levin: It wasn’t written that way. It wasn’t adopted by the Supreme Court so that it would apply to them. So there are no rules of ethics, and the problem in terms of getting one is a separation of powers issue, is in terms of whether or not Congress could impose one on the Supreme Court. What we really need to see is that the Supreme Court, the US Supreme Court adopts one for itself. Chief Justice Roberts has shown in the past real concern about the legacy of his court, and I keep hoping that maybe he will try to cajole his colleagues to adopt rules, ethical rules, but it just hasn’t happened yet. And unfortunately, the last State of the Court statement that he made didn’t suggest any interest in doing that. But it’s a real problem.

J. Craig Williams: And it’s a fascinating constitutional question, since there’s supposed to be three equal branches of government.

Leslie C. Levin: Right. It makes it hard to impose anything on a court that is reluctant to impose ethics rules on itself.

J. Craig Williams: Well, Leslie, it looks like we reached the end of our program, so it’s time to invite you to share your final thoughts and wrap up and talk about your book if you’d like.

Leslie C. Levin: I’m really glad that you asked me to talk about this. And I guess I’ll focus in terms of my final thoughts on the question of how to handle the disciplinary complaints against Rudy Giuliani and John Eastman. These are not typical discipline matters, but I think it’s right to raise the question of how lawyers who misrepresent to courts and to the public important issues, and in this case, I think really have done harm.

I think it’s appropriate to impose discipline, but if it happens, it will be a big step. The courts on the East Coast have already taken a big step in that direction with Mr. Giuliani, but I think it’s the appropriate step to take because we need lawyers to behave and to be trustworthy in order to continue to have faith in our justice system and in the legitimacy of the courts.

I know you’re offering me the opportunity to plug my book “Lawyers in Practice: Ethical Decision Making in Context”, and I did that with Lynn Mather. It looks at ethical issues lawyers confront in everyday practice, in particular practice settings, and the many things that affect how they decide how to behave in certain circumstances. So thanks very much. I guess I should mention also, if somebody wants to reach me, I’m reachable at [email protected].

J. Craig Williams: Wonderful. It’s been a fascinating discussion and really appreciated having you here as a guest. Thank you.

Leslie C. Levin: Thank you for having me.

J. Craig Williams: Well, here are a few of my thoughts about today’s topic. Professor Levin has certainly highlighted a problem that the attorney profession has begun to suffer, if not suffered, as she pointed out for a long time in the public eye. And these recent political hacks against the profession have really taken a toll, I think, in the public’s belief, not only in the profession itself, but, as Professor Levin aptly pointed out, to the integrity of the election system itself.

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We’ve done some damage and we need to do some repairs so hopefully these attorney discipline matters will turn out to prove the point that that kind of conduct cannot be tolerated and will not be tolerated so we can put an end to it. And attorneys, I think we all need to start speaking up a bit more constitutionally to our friends and neighbors and educate them on what this country should be running like. And hopefully, as Professor Levin also pointed out, we get a Supreme Court that can man up and finally put its own ethical constraints on itself because it’s way overdue.

Well, that’s it for Craig’s ran on this topic. Let me know what you think. If you like what you’ve heard today in the podcast, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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