First Adopted: August 07, 1985
Most Recently Effective: July 01, 2007
Rule 4-8 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 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) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter; or
(c) knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule 4-8.1 does not require disclosure of information otherwise protected by Rule 4-1.6.
Comment
[1] The duty imposed by this Rule 4-8.1 extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule 4-8.1 applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. Rule 4-8.1(b) also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.
[2] Rule 4-8.1 is subject to the provisions of the fifth amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with Rule 4-8.1.
[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including Rule 4-1.6 and, in some cases, Rule 4-3.3.
(Adopted August 7, 1985, effective January 1, 1986. Amended March 1, 2007, effective July 1, 2007.)
First Adopted: August 07, 1985
Most Recently Effective: July 01, 2007
Rule 4-8 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 8. 2 | Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
Comment
[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney, and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.
[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.
[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.
(Adopted August 7, 1985, effective January 1, 1986. Amended March 1, 2007, effective July 1, 2007.)
First Adopted: August 07, 1985
Most Recently Effective: July 01, 2007
Rule 4-8 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 8. 3 | Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule 4-8.3 does not require disclosure of information otherwise protected by Rule 4-1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
Comment
[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
[2] A report about misconduct is not required where it would involve violation of Rule 4-1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.
[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule 4-8.3 limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule 4-8.3. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.
[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of Rule 4-8.3(a) and (b) encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law.
(Adopted August 7, 1985, effective January 1, 1986. Amended March 1, 2007, effective July 1, 2007.)
First Adopted: August 07, 1985
Most Recently Effective: July 18, 2019
Rule 4-8 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 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. It shall not be professional misconduct for a lawyer for a criminal law enforcement agency, regulatory agency, or state attorney general to advise others about or to supervise another in an undercover investigation if the entity is authorized by law to conduct undercover investigations, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency, regulatory agency, or state attorney general to participate in an undercover investigation, if the entity is authorized by law to conduct undercover investigations;
(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;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) manifest by words or conduct, in representing a client, bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. This Rule 4-8.4(g) does not preclude legitimate advocacy when race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or other similar factors, are issues. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 4-1.16.
Comment
[1] Lawyers are subject to discipline when they 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, as when they request or instruct an agent to do so on the lawyer's behalf Rule 4-8.4(a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
[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.
[3] Rule 4-8.4(c) recognizes instances where lawyers for criminal law enforcement agencies, regulatory agencies, or the state attorney general advise others about or supervise others in undercover investigations and provides an exception to allow the activity without the lawyer engaging in professional misconduct. The exception acknowledges current, acceptable practice of these entities. This exception is not intended to state or imply that an entity has the authority to conduct undercover investigations unless that authority is separately granted to the entity by law. Although the exception appears in this rule, it is also applicable to Rules 4-4.1 and 4-4.3. This exception does not authorize conduct otherwise prohibited by Rule 4-4.2. Nothing in the rule allows the lawyer to advise others about or supervise others in undercover investigations unless the criminal law enforcement agency, regulatory agency, or state attorney general is authorized by law to engage in such conduct.
[4] Rule 4-8.4(g) identifies the special importance of a lawyer's words or conduct, in representing a client, that manifest bias or prejudice or constitute harassment against others based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. Rule 4-8.4(g) excludes those instances in which a lawyer engages in legitimate advocacy with respect to these factors. A lawyer acts as an officer of the court and is licensed to practice by the state. The manifestation of bias or prejudice or the engagement in harassment by a lawyer, in representing a client, fosters discrimination in the provision of services in the state judicial system, creates a substantial likelihood of material prejudice by impairing the integrity and fairness of the judicial system, and undermines public confidence in the fair and impartial administration of justice.
Whether a lawyer's conduct constitutes professional misconduct in violation of Rule 4-8.4(g) can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 4-8.4(g), "bias or prejudice" means words or conduct that the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. For purposes of Rule 4-8.4(g), "harassment" is verbal or physical conduct that shows hostility or aversion toward a person based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. "Harassment" includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) submission to that conduct is made, either explicitly or implicitly, a term or condition of the individual's employment;
(b) submission to or rejection of such conduct by an individual is used as a factor in decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive environment.
[5] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 4-1.2(f) concerning a good faith challenge to the validity, scope, meaning, or application of the law apply to challenges of legal regulation of the practice of law.
[6] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent, and officer, director, or manager of a corporation or other organization.
(Adopted August 7, 1985, effective January 1, 1986. Amended November 21, 1995, effective January 1, 1996; amended November 25, 2003, effective January 1, 2004; amended March 1, 2007, effective July 1, 2007; amended June 28, 2011, effective January 1, 2012; amended April 27, 2012, effective July 1, 2012; amended July 18, 2019, effective July 18, 2019).
First Adopted: August 07, 1985
Most Recently Effective: July 01, 2007
Rule 4-8 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 8. 5 | Disciplinary Authority; Choice of Law
(a) A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and other jurisdictions for the same conduct.
(b) In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction.
A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.
Comment
[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary authority of this jurisdiction to other lawyers who provide or offer to provide legal services in this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and sanctions will further advance the purposes of this Rule 4. See Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary Enforcement. The fact that the lawyer is subject to the disciplinary authority of this jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over the lawyer for civil matters.
[2] A lawyer may be potentially subject to more than one set of rules of professional conduct that impose different obligations. The lawyer may be licensed to practice in more than one jurisdiction with differing rules or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.
[3] Rule 4-8.5(b) seeks to resolve such potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of:
(a) providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct;
(b) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions; and
(c) providing protection from discipline for lawyers who act reasonably in the face of uncertainty.
[4] Rule 4-8.5(b)(1) provides that as to a lawyer's conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, Rule 4-8.5(b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits, or in another jurisdiction.
[5] When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule 4-8.5.
[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this Rule 4-8.5, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct and, in all events, should avoid proceeding against a lawyer on the basis of two inconsistent rules.
[7] The choice of law provision applies to lawyers engaged in transnational practice, unless international law, treaties, or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.
(Adopted August 7, 1985, effective January 1, 1986. Amended March 9, 2005, effective January 1, 2006; amended March 1, 2007, effective July 1, 2007.)
First Adopted: August 07, 1985
Most Recently Effective: July 01, 2007
Rule 4-9 | Rules of Professional Conduct | Maintaining the Integrity of the Profession
4- 9. 1 | Lawyer Referral and Information Services
(a) The operation of this Rule 4-9.1 and compliance with its provisions shall be supervised by the chief disciplinary counsel. The chief disciplinary counsel shall develop and promulgate regulations, procedures, and forms not inconsistent with this Rule 4-9.1, including the amount of the fee to register a qualified service, subject to approval by this Court.
(b) Lawyers eligible to practice in this state may participate in a service that refers them to prospective clients, but only if the service is a qualified service because it conforms to this Rule 4-9.1.
(c) A qualified service shall be operated in the public interest for the purpose of referring prospective clients to lawyers, pro bono and public service legal programs, and government, consumer, or other agencies that can provide the assistance the clients need in light of their financial circumstances, spoken language, any disability, geographical convenience, and the nature and complexity of their problems.
(d) Only a qualified service may call itself a lawyer referral service or operate for a direct or indirect purpose of referring potential clients to particular lawyers, whether or not the term 'referral service' is used.
(e) A qualified service must be open to all lawyers licensed to practice in this state who:
(1) maintain an office within the geographical area served,
(2) pay reasonable fees established by the service, and
(3) maintain in force a policy of errors and omissions insurance in an amount at least equal to the minimum established by the chief disciplinary counsel.
A qualified service shall establish and publish a procedure for admitting, suspending, or removing lawyers from its roll of panelists.
(f) No fee generating referral may be made to any lawyer who has an ownership interest in, or who operates or is employed by, a qualified service or who is associated with a law firm that has an ownership interest in, or operates or is employed by, a qualified service.
(g) A qualified service shall periodically survey client satisfaction with its operations and shall investigate and take appropriate action with respect to client complaints against panelists, the service, and its employees.
(h) A qualified service may establish specific subject matter panels, including moderate and no fee panels, foreign language panels, alternative dispute resolution panels, and other special panels that respond to the referral needs of the consumer public, eligibility for which shall be determined on the basis of experience and other substantial objectively determinable criteria.
(i) A qualified service shall:
(1) register with the chief disciplinary counsel and demonstrate its compliance with this Rule 4-9.1 before commencing to operate;
(2) update the materials filed with the chief disciplinary counsel within 30 days of any material change; and
(3) on or before June 30 annually, file with the chief disciplinary counsel a report of its operations and finances during the previous twelve months demonstrating its continued compliance with this Rule 4-9.1.
(j) This Rule 4-9.1 does not apply to:
(1) a group or prepaid legal plan, whether operated by a union trust, mutual benefit or aid association, corporation, or other entity or person that provides unlimited or a specified amount of telephone advice or personal communication at no charge to the members or beneficiaries, other than a periodic membership or beneficiary fee, and that furnishes or pays for legal services to its beneficiaries;
(2) a plan of prepaid legal services insurance authorized to operate in this state;
(3) individual lawyer-to-lawyer referrals;
(4) lawyers jointly advertising their own services in a manner that discloses that such advertising is solely to solicit clients for themselves;
(5) any pro bono legal assistance program that does not accept any fee from clients for referrals; or
(6) any organization maintaining a 26 USC 501(c)(3) exemption that maintains a referral list only incident to its other activities.
(k) A disclosure of information to a lawyer referral service for the purpose of seeking legal assistance or for purposes of complying with the survey under Rule 4-9.1(g) shall be deemed a privileged lawyer-client communication.
(l) The chief disciplinary counsel may deny, suspend, or cancel any registration upon making a finding of a material violation of any provisions of this Rule 4-9.1. Any person who is substantially and individually aggrieved by the action of the chief disciplinary counsel may, within 30 days of receiving notice of the action, petition this Court for review of the action of the chief disciplinary counsel. This Court may direct that the issues raised in the petition be briefed and argued as though a petition for an original remedial writ has been sustained. This Court may sustain, modify, or vacate the action of the chief disciplinary counsel or dismiss the petition.
(m) Any person violating the provisions of this Rule 4-9.1 shall be deemed to be engaged in the unauthorized practice of law.
(Adopted August 7, 1985, effective January 1, 1986. Amended September 28, 1993, effective January 1, 1994; amended March 1, 2007, effective July 1, 2007.)