1 THE ETHYS The Best of the Worst Ethics Offenders Sean Carter Humorist at Law Lawpsided Seminars 3620 N Paseo Del Sol Mesa, AZ Phone: (480) Fax: (480)
2 Sean Carter Humorist at Law Lawpsided Seminars Mesa, Arizona Sean Carter is the founder of Lawpsided Seminars, a company devoted to solid legal continuing education with a healthy dose of laughter. Mr. Carter graduated from Harvard Law School in His ten years of legal practice focused on corporate securities and mergers and acquisitions. During this time, he represented such clients as GNC, Experian, The Boston Beer Company, Homeside Lending, Safelite Auto Glass, J. Crew and many others, before eventually serving as in-house counsel to a publicly-traded finance company. In 2002, Mr. Carter left the practice of law to pursue a career as the country s foremost Humorist at Law. Since then, Mr. Carter has crisscrossed the country delivering his Lawpsided Seminars for state and local bar associations, law firms, in-house corporate legal departments and law schools. Each year, he presents more than 100 humorous programs on such topics as legal ethics, stress management, constitutional law, legal marketing and much more. Mr. Carter is the author of the first-ever comedic legal treatise -- If It Does Not Fit, Must You Acquit?: Your Humorous Guide to the Law. His syndicated legal humor column has appeared in general circulation newspapers in more than 30 states and his weekly humor column for lawyers appeared in the ABA e-report from 2003 to Finally, Sean lives in Mesa, Arizona with his wife and four sons.
3 The Academy has reviewed disciplinary reports from across the country to compile its list of the Best of the Worst in various categories of ethics violations. Awards will be given in categories that correspond with the most common ethical violations. While each of the nominees has violated an ethical rule in a grievous manner, they can serve as warnings for attorneys to avoid similar (although likely, far less flagrant) violations.
4 The Eager Beaver Award While most ethical violations result from an attorney s misconduct in the practice of law, some lawyers are too eager to wait for admission to the bar to begin violating its ethics rules. Their misdeeds prevent them from ever becoming lawyers, particularly, when they violate the following rules: RULE 5.5 UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW (a) A lawyer shall not: (1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction except that a lawyer admitted to practice in Wisconsin does not violate this rule by conduct in another jurisdiction that is permitted in Wisconsin under SCR 20:5.5 (c) and (d) for lawyers not admitted in Wisconsin; or (2) assist another in practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. (d) A lawyer admitted to practice in another United States jurisdiction or in a foreign jurisdiction, who is not disbarred or suspended from practice in any jurisdiction for disciplinary reasons or medical incapacity, may provide legal services in this jurisdiction that: (1) are provided to the lawyer s employer or its organizational affiliates after compliance with SCR (4) (f), and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) (b) knowingly make a false statement of material fact; or fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by SCR 20:1.6.
5 Legally Blonde (Tennessee BPR# 27219): Lawyer publicly censured for opening a law office and publishing a website prior to swearing in ceremony. Nine ½ Weeks (Ohio Order of Suspension ): Lawyer suspended for failing to pay registration fee within 30 days of being admitted to the bar. To Kill a Mockingbird (134 Ohio St.3d 168, 2012-Ohio-5480): Law grad denied admission for defaulting on student loan debt. LESSON: A lawyer must be careful to follow the admissions rules to the letter. Furthermore, lawyers must realize that they will be accountable for actions that occur even prior to being admitted to the practice of law as they reflect on his/her moral character. And perhaps, the thing that reflects most on this character is the lawyer s willingness to be candid about prior misdeeds in the bar application process, regardless of how irrevelant the lawyer may consider them.
6 The Outlawyer As officers of the court, lawyers have an obligation to abide by the law. The nominees in this category have committed egregious acts of criminality resulting in the loss of their privilege to practice law; and in some cases, the loss of their freedom. In the process, they have violated the following rule: RULE 8.4: MISCONDUCT It is professional misconduct for a lawyer to: (b) commit an criminal act that reflects adversely on the lawyer s honesty or trustworthiness;  Many kinds of illegal conduct reflect adversely on fitness to practice law. Illegal conduct involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice is illustrative of conduct that reflects adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. Maid in Manhattan: California lawyer is harboring an illegal immigrant for financial gain. School Ties (D.C. Bar Docket No D388): Lawyer suspended for shoplifting neckties from Nordstrom s. Thirteen Days (Illinois Commission No. 04 CH 122): Lawyer faces possible disbarment for possessing Cuban cigars. Death and Taxes (2012 NY Slip Op [97 AD3d 137]): Tax lawyer reprimanded for failing to file personal income tax returns. LESSON: In the case of the law, it s not enough to know it, but to follow it as well. And while most attorneys value their freedom too highly to commit serious crimes, we have an obligation to avoid a pattern of repeated offenses, even ones of minor significance when considered separately (i.e., the little crimes).
7 Worst Collaboration in a Legal Setting While it is more common for lawyers to misappropriate funds from their clients, it is still far too common for lawyers to steal from their law partners or employers. This theft takes several forms (e.g., failing to remit earned fees to the partnership, submitting inflated expense reports, falsifying billable hours, etc.). Yet, in whatever form, dealing dishonestly with colleagues and associates is still a violation of the ethics rules. RULE 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; The Royal Tenenbaums (Illinois Commission No. 2010PR00160): Lawyer recommended for six-month suspension for stealing funds from family trust. The Hurt Locker (Tennessee No. E SC-R3-BP): Attorney suspended for four years for failing to remit earned fees to his partners. Hoffa (New York State Supreme Court, No ): In-house lawyer disbarred for grossly inflated expense reports to employer. The Flash (Wisconsin Appeal No. 2011AP259-D): Lawyer accused of inflating billable hours to earn law firm bonus. The Answer Man: Kentucky lawyer reprimanded for answering legal questions online for money while employed by the state. LESSON: Lawyers must be honorable in their conduct with all persons as it is no less of an ethics violation to cheat one s colleagues as it is to cheat clients or others in the general public.
8 The Joan Rivers Award Lawyers have an obligation to keep client confidences. This obligation is at the heart of the lawyer s ability to provide zealous representation for the client. Without the assurance of confidentiality, clients will be less likely to provide their lawyers with all of the facts necessary to properly access the client s case. Notwithstanding the foregoing, an attorney s confidentiality obligation is not absolute as there are situations in which the disclosure of client confidences is not only proper but required. The nominees in this category had no such justifications for spilling the beans. RULE 1.6 CONFIDENTIALITY (a) (b) (c) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c). A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably likely death or substantial bodily harm; (2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client s commission of a crime or fraud in furtherance of which the client has used the lawyer s services; (3) to secure legal advice about the lawyer s conduct under these rules; (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; or (5) to comply with other law or a court order.
9 RULE 1.13 ORGANIZATION AS CLIENT (b) (c) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act in behalf of the organization as determined by applicable law. Except as provided in par. (d), if, (1) despite the lawyer s efforts in accordance with par. (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not SCR 20:1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. Silence of the Lambs (Maine Docket No. Bar-11-12): Lawyer reprimanded after going on a one-man crusade to prove that his former client is a serial killer. Sex, Lies and Videotapes: Florida public defender fired after posting picture of client in leopard-print underwear on FB. Zero Dark Thirty (Kansas No. 108,169): Former Navy lawyer disbarred for sending classified list of Gitmo detainees to Center for Constitutional Rights. I Know What You Did Last Summer: New Jersey in-house lawyer suspended for one year for attempting to extort a bonus from employer. LESSON: The duty to preserve client confidences is so important that lawyers may be sanctioned for disclosures, even when there is a legitimate reason for such disclosure.
10 Worst Love Scene While it is admirable for a lawyer to show love for clients and even opposing counsel and parties, there are obliviously limits to such expressions. Unfortunately, some lawyers ignore such limits and, in the process, create conflicts of interests. RULE 1.8: CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. (2) When the client is an organization, a lawyer for the organization (whether inside counsel or outside counsel) shall not have sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization s legal matters. Disclosure (Colorado 11PDJ079): DA disbarred for sexual harassment. Chicago (Supreme Court Case No. 26S DI-700): Attorney suspended for bartering legal services for sex. Enemy Mine: New York attorney suspended for making unwanted advances to opposing counsel Harold and Maude (California Case No. 07-O-11504): Attorney disbarred for marrying much older client just prior to his death LESSON: Even the most private of relationships is subject to public scrutiny when the lawyer is professionally involved with the participants.
11 The Hitchcock Award While most disciplinary cases are based on obvious violations of the canons of ethics, there are some cases that are brought to the absolute shock and horror of the respondent. These lawyers had engaged in some wrongful activity that, on its face, did not rise to the level warranting a bar investigation. However, it should be noted that the ethics rules are designed to ensure that lawyers don t act in any manner that reflects adversely on our honesty, trustworthiness or fitness as a lawyer in other respects. The Matrix (Oregon OSB 12-70; SC S060606): Lawyer reprimanded for continuing to use employer s Westlaw account 14 months after end of employment. Dead Beat (2012 NY Slip Op [95 AD3d 289]): Lawyer suspended for failing to pay child support. Soul Man (Illinois Commission No. 09 CH 88): Lawyer recommended for disbarment for lying on children s financial aid applications. LESSON: A lawyer is accountable to the disciplinary authorities for even actions that occur outside of the practice of law. Furthermore, the disciplinary authorities will consider transgressions without regard to whether they are technically crimes or even acts that are malum per se. Even a technical infraction of the law can give rise to a disciplinary action under certain circumstances.
12 Best Original Excuse There may be a thousand good reasons why a lawyer will violate his or her ethics duties, but there is seldom a single good excuse. That being said, there are some factors that may mitigate the sanction imposed upon the lawyer. The nominees in this category were particularly creative in their quest for absolution/leniency. The Hulk (2012 NY Slip Op [93 AD3d 77]): Attorney claims that violent outbursts are the result of intermittent explosive disorder. Liar Liar (California Case No. 09-O-10774): Attorney claims that Esquire has other meanings. The Flash (Wisconsin Appeal No. 2011AP259-D): Attorney believes he was justified in overstating his billable hours because he worked much faster than other lawyers. Ghost (134 Ohio St.3d 154, 2012-Ohio-5427): Law graduate claims that sweaty palms caused poor grade on exam Joe Versus the Volcano (Utah No ): Attorney contends that undiagnosed brain cyst caused misappropriation of client settlement funds. Finding Nemo (132 Ohio St.3d 496, 2012-Ohio-3830): Attorney contends that his ADHD caused his ethical lapses. Fun With Dick and Jane: Pennsylvania attorney claims that bad economy forced him to misappropriate client funds. LESSON: Most disciplinary authorities consider unpersuasive excuses as an aggravating factor in meting out sanctions. As a result, lawyers should be willing to accept full responsibility when warranted by the circumstances. In fact, this same principle should apply in all situations in which the lawyer is at fault and not just in the context of a disciplinary hearing.
13 Biggest Fool for a Client It s been said that the lawyer who represents himself has a fool for a client. This adage has been proven true by the nominees in this category, each of whom took foolishness to new heights (or perhaps, lows) as they let their personal interests overshadow their professional obligations. This is also true in cases where the lawyer represents family members. In either case, the nominees in this category are lawyers who have allowed their personal feelings to get the best of them, causing them to use legal (and extra legal) means to exact their pound of flesh. RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) (c) (d) (e) unlawfully obstruct another party s access to evidence; unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; or counsel or assist another person to do any such act; knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on a good faith assertion that no valid obligation exists; in pretrial procedure, intentionally or habitually make a frivolous motion or discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence or by a good-faith belief that such evidence may exist, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused;
14 RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL A lawyer shall not: (d) engage in conduct intended to disrupt a tribunal.  The advocate s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.  The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. RULE 4.4: RESPECT FOR RIGHTS OF 3RD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person. Sherlock Holmes (Louisiana No. 11-DB-011): Lawyer reprimanded for offensive conduct while representing wife in action against her ex-husband. Arrested Development: California prosecutor is fired for pressuring police to arrest her fiance s ex-wife. Kramer vs. Kramer: California lawyer suspended for six months for unbelievable conduct in his own divorce. Edward Scissorhands (South Carolina Opinion No ): Lawyer suspended for six months for improper questioning in his pro se lawsuit. LESSON: As legal professionals, we must be ever mindful of our obligation to be just that professional. In this vain, it s particularly important for us to avoid situations in which our objectivity will be necessarily compromised, such as in matters involving ourselves or family.
15 Miss (Mister) Uncongeniality In the course of litigation, some lawyers behave as if civility and decency is optional. Increasingly, such lawyers are being subject to discipline for their lack of decorum. Here are some examples: The Godfather: Suspension sought for Minnesota lawyer who told opposing counsel that he hopes she sleeps with the fishes. Philadelphia: Illinois lawyer suspended for using gay slurs to refer to other attorneys. Rosewood: New York lawyer disbarred for making repeated racist calls to neighbors. League of Extraordinary Gentlemen: Illinois lawyer charged with calling opposing counsel vile and sexist names. No Country For Old Men (Arizona PDJ ): Attorney suspended for one-year for using graphic language to insult medical records personnel. LESSON: Lawyers may be subject to disciplinary action for incivility, even if such incivility does not occur in the presence of the judge. In fact, such behavior may be punished even if it occurs outside of any legal (or quasi legal) forum. So long as a lawyer is acting in a professional capacity, the lawyer has an obligation to be a little minimally polite.
16 Worst Temper in a Non-Legal Setting Some lawyers carry the contentious nature of litigation into the personal lives and their interactions with others in society. And while this can be simply annoying in some contexts, it can be criminal when taken to the extreme, causing the lawyer to violate Rule 8.4(b). Caddy Shack (Illinois Commission No. 2011PR00091): Attorney censured for assaulting a golfer Wal-Mart (Louisiana Docket No. 12-DB-027): Attorney faces possible suspension after fighting in a Walmart parking lot. The Hulk (2012 NY Slip Op [93 AD3d 77]): Attorney suspended for three years following conviction for domestic violence. The Untouchables (West Virginia No ): Attorney s license annulled for beating client with a baseball bat Lesson: Continued hostility in the practice of law will begin to manifest itself into an attorney s private life.
17 Most Impaired in a Non-Legal Setting Under the influence of drugs and alcohol, lawyers commit some of the most outrageous acts. Taboo: Illinois prosecutor suspended after being arrested for biting an adult bookstore employee. Fargo (2012 NY Slip Op [99 AD3d 207]): Attorney publicly reprimanded for attempting to bribe a police officer with a $2,000 personal check after DUI arrest. Leaving Las Vegas (Illinois Commission No. 2012PR00065): Attorney disbarred for DUI. Welcome to Mooseport (Oklahoma Case Number: SCBD-5847): Lawyer suspended after three DUI convictions. LESSON: The abuse of drugs and/or alcohol in an attorney s private life can become cause for disciplinary action.
18 The Lifetime Achievement Award The nominees in this category have amassed a lifetime of ethics violations. In some cases, they have done so in a very short period of time. In other cases, they have earned this award through a career dedicated to malfeasance and negligence. In either event, their contributions to the legal ethics lore are acknowledged. An Officer and a Gentleman (133 Ohio St.3d 217, 2012-Ohio-4541): Attorney suspended indefinitely for misconduct in 20 bankruptcy cases. The Money Pit: California attorney disbarred for 52 counts of misconduct in 13 cases resulting in $1.226 million in restitution. Breaking Bad: California attorney suspended for two years for 69 counts of misconduct in 14 loan modification cases. 300 (132 Ohio St.3d 205, 2012-Ohio-2580): Attorney disbarred for 300 ethical violations over 4 ½ years. LESSON: It s important for us to remember that none of these nominees set out to build a career of repeated ethics violations. In fact, it s likely that each of these nominees began their careers with the best of intentions. However, they developed a set of bad habits that destroyed their intentions. The rest of us must be vigilant to avoid falling into these same traps.
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