Roger writing the LAWmag
25
Apr 2009

Conduct Unbecoming: The Lawyer's Sword of Damocles

Sword of DamoclesIn most professions, the employee does not have to bring their work or their boss home with them.

Lawyers do.

Lawyers accept and even cherish being held to the highest degree of professional conduct.

Where things become tricky is when the law society seeks to discipline a lawyer for private life dealings.

For that, most lawyers are held to an esoteric and mysterious mostly unwritten rule to avoid conduct unbecoming.

To some degree, the actual extent of law society Big Brother varies between the jurisdictions.

USA

In the United States, the American Bar Association (ABA) prefers to prohibit conduct that is prejudicial to the administration of justice.

But even that has not stopped the courts from ruling that conduct can be unbecoming a professional even if it is private or occurs in their private life.

The most egregious of these example involve the commission of a criminal offence by a lawyer in his private life. These convictions tend to demonstrate that a lawyer has put himself above the law, or shows significant disregard for the law.

The ABA Model Code on Professional Conduct , at §1-102, suggest that:

"A lawyer shall not engage in illegal conduct involving moral turpitude."

So omnipresent is the bar association's eye on the lawyer that attorneys have been disciplined - even disbarred - under this provision even where there has not been a criminal conviction.

In Oregon, attorney Orlin Anson deposited over $20,000 from a client to his personal account. Anson was never charged, likely because the victim was elderly and of questionable mental capacity. The Oregon Supreme Court:

"We disbar Anson from the practice of law."

Participation in drug distribution offences is a sure path to being disbarred. But personal use ... not so much. There are numerous examples of lawyers being suspended or publicly reprimanded for possession of cocaine or marijuana. What may be telling is that in many of these cases, the state bar often issues a decision against the lawyer without revealing the name of the lawyer, referring instead to, for example, In re Anonymous Member of the South Carolina Bar 360 SE 2d 322.

In many other cases, drug using lawyers need only register in some therapy program to get an anonymous slap on the wrist from their bar association.

And then they are the deadly serious cases. In Woonmansee, an attorney was suspended for three years for trying to seduce a family law client that he knew to be emotionally vulnerable.

In Patarini, the attorney was going through a difficult divorce. He tried to hire a muscleman to rough up his wife's lawyer and was given a 3-month suspension.

Canada, eh?

In Canada, Sidney Cwinn was disbarred for having sex with young girls between 1972 and 1976, two as young as 14. He owned a stable near Ottawa and would seduce the girls while they were away on horse show trips with him.

In words worth repeating, when Cwinn was first disciplined by the Law Society of Upper Canada, the Discipline Board stated that:

"We hasten to state that ... we do not regard it as conduct unbecoming simply for a solicitor to go to Buffalo for the purpose of fornication."

Cwinn's conduct was nonetheless, under all the circumstances, held to have been unbecoming and he was disbarred.

In Professional Conduct for Lawyers and Judges, author B. Smith suggests that:

"The lawyer is to conduct her/himself in accordance with standards as high as those required by a code of conduct relative to the practice of law. The lawyer is called upon to actually and apparently live as a person of integrity as much in other lives as in the lawyer's professional one."

MacKenzie adds (at page 26-26.2):

"The breadth of the concepts of conduct unbecoming and moral turpitude clearly invite prying (by the Law Society) into private lives (of lawyers) and the imposition of value judgments in matters unrelated to the practice of law."

This means right into the bedrooms of the lawyers of the nation. According to the Vancouver Sun, British Columbia lawyer Marli Rusen faces a law society investigation because she is alleged to of had a sexual relationship with the city police chief, one of her principals while she was negotiating severance packages.

Horse Hair

Lawyers generally love what they do and do not need any code of professional conduct to hold them to the highest standards of integrity in their personal lives.

The ranks of bar associations are chock full of lawyers who are leaders in their communities, coaching youth basketball, softball or soccer teams, presiding over PTAs and sitting on the boards of churches and charities.

Nor do lawyers want, within their ranks, rotten apples; drug addicts or crooks.

As such, the personal life of almost all lawyers can pass muster upon any peer from the law society.

A lawyer's relationship with his/her Big Brother law society is one of love-hate.

It's love when they shut-down a rotten egg.

But what really bothered Damocles was not so much the huge sword hovering over his head.

It was the fact that it was ever presently held there by a horse hair.

But then, if you can't stand the heat, don't go in the kitchen.

REFERENCES:

Note: painting is "Sword of Damocles" by Richard Westall, England, circa 1812.

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