Conduct Unbecoming Legal Definition:

Conduct on the part of a certified professional that is contrary to the interests of the public served by that professional, or which harms the standing of the profession in the eyes of the public.

Certified professionals, such as lawyers, judges, engineers, social workers, doctors and nurses and chartered accountants, often have to abide by a catch-all phrase in their professional conduct handbooks which prohibits them from not only from certain and specified conduct, but also conduct unbecoming a lawyer or a chartered accountant generally.

For lawyers and judges, some jurisdictions, such as England, prefer the term conduct unbefitting a solicitor or unbefitting conduct.

For some authors, such as MacKenzie, a "conduct unbecoming" prohibition is aimed at the "personal or private" life of a person so held although this statement is probably wrong in suggesting that, barring a statutory definition to this effect,  disciplinary boards would only invoke the "conduct unbecoming" prohibition to discipline purely private or personal non-lawyer-like conduct.

In other jurisdictions, lawyers are held to a prohibition against any conduct that either brings the justice system or their profession into disrepute or conduct prejudicial to the administration of justice.

As an example, Ontario's Law Society Act, §33, provides:

"A licensee shall not engage in professional misconduct or conduct unbecoming a licensee."

The Ontario Law Society Rules of Professional Conduct:

"Conduct unbecoming a barrister or solicitor means conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession including, for example, committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another, or engaging in conduct involving dishonesty or conduct which undermines the administration of justice."

In Trace, Justice Côté of the Alberta Court of Appeal noted the general prohibition against conduct unbecoming a chartered accountant in the 1980 Chartered Accountants Act. That statute defined conduct unbecoming in general terms as any conduct:

"... inimical to the best interests of the public or members of the Institute, or (which) tends to harm the standing of the accounting profession generally."

Deferring first to the Oxford English Dictionary, Justice Côté wrote:

"Inimical means hostile, unfriendly, harmful, adverse ... adverse or injurious in tendency or influence; harmful, hurtful. None of these definitions requires dishonesty or wickedness or depravity, and most suggest a tendency effect or disposition, rather than a degree or quantity. All this establishes that the degree of transgression may be small or large. And it shows that the conduct need not be "unbecoming" in the dictionary sense to be an offence, for the statutory definition is wider."

Thus, one looks to the statutory definition. However, most such provisions end their list with the catch-all phrase such as "and any other such conduct unbecoming".

The American Bar Association's Lawyers' Manual on Professional Conduct, Rule 8.4:

"It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice."

The general aim of the prohibition is to contain rude or disparaging conduct by lawyers towards other lawyers, witnesses or others.

However, the prohibition is not contained to the professional dealings of a lawyer (Moore). Again, the ABA Lawyers' Manual:

"The prohibition ... also reaches conduct that is uncivil, undignified or unprofessional, regardless of whether it is directly connected to a legal proceeding."

For example, the general prohibition against conduct unbecoming has been used to discipline a lawyer who fails or is late in filing his personal income tax returns (People) or other conduct which might otherwise constitute contempt of Court.

The 2004 version of Cordery on Solicitors adds that:

"Solicitors are not liable in conduct for simple mistakes or erros of judgment."

Further, this statement from within the 2000 version of the the Law Society of Upper Canada's Rules of Professional Conduct:

"The Society will not be concerned with the purely private or extra-professional activities of a lawyer that do not bring into question the lawyer’s that do not bring into question the lawyer’s professional integrity."

REFERENCES:

  • American Bar Association, ABA/BNA Lawyers' Manual on Professional Conduct (Chicago: American Bar Association, 1997).
  • Chartered Accountants Act Revised Statutes of Alberta 1980, Chapter C-5
  • Duhaime, Lloyd, Conduct Unbecoming: The Lawyer's Sword of Damocles, LawMag, published April 25, 2009
  • Holland, A., ed., Corderey on Solicitors (London: LexisNexis, 2004), page I/857, ¶1430-1440.
  • Law Society Act, Revised Statutes of Ontario 1990, Chapter 8
  • Law Society of Upper Canada (Ontario)
  • MacKenzie, G., Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Thomson-Carswell, 2007), page 26-25.
  • People v McIntyre 942 P. 2d 499 (Colorado, 1997)
  • Trace v Institute of Chartered Accountants (of Alberta) 54 DLR 4th 82 (1988)
  • US v Moore 38 MJ 490

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