Recent Significant Ethics Cases

The scope of this comment addresses recent judicial decisions in- volving ethical considerations. The cases represent selected rulings which have a significant impact on the ethical responsibilities of the contem- porary legal practitioner.

I. Admission to Practice

A recurring problem faced by Bar Associations concerns the basic qualifications of a Bar applicant. In Florida Bd. of Bar Examiners In Re Hale,' the Florida Supreme Court addressed the issue of an appli- cant's academic background. Since 1955, Florida had required that "all applicants submitting to the Florida Bar Examination be graduates of ABA-approved law schools or AALS [Association of American Law Schools] law school^."^ The Florida Supreme Court, however, had tradi- tionally entertained petitions to waive the educational qualification requirement.' In Florida Bd. of Bar Examiners In Re Hale, the court expressly rejected the future consideration of academic waiver petitions. The Florida Supreme Court concluded that the adoption of a non-waiver policy "while conceivably a hardship to some, is in the best interest of the legal profession in our ~ t a t e . " ~

Beyond threshold academic requirements, the general rule is that an applicant carries the burden of exemplifying good moral character as a prelude to Bar ~ertification.~ In Hightower v. State Bar of Calif~rnia,~ the California Supreme Court confronted an applicant who had been deemed, by the Committee of Bar Examiners, as lacking moral fitness.' After establishing that an applicant carries the burden of proving good moral character, the court noted:

W e must conclude that petitioner's activities of practicing law

1. 433 So. 2d 969 (Fla. 1983). 2. Id. at 971. 3. Id. The court noted that since 1976 there had been fifty-five petitions

attempting to waive the academic prerequisite. Of those petitions only nine were granted. 4. Id. at 972. The court further reasoned that the use of waiver petitions in-

volved an excessive amount of judicial time as well as expense. 5. See H. DRINKER, LEGAL ETHICS 46 (1954). 6. 34 Cal.3d 150, 666 P.2d 10, 193 Cal. Rptr. 153 (1983). 7. Id. The basis for the finding rested on the fact that the applicant had been

involved in the unlawful practice of law. The applicant had graduated in 1976 and pass- ed the California Bar in 1979 after his seventh attempt.

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minative if the petitioner demonstrates his rehabilitation and moral qualification to become a member of the Bar . . . . While the showing of rehabilitation is not overwhelming, there is substantial evidence of rehabilitation, and the State Bar furnishes no basis to reject that evidence. There is no evidence indicating that petitioner is not rehabilitated.8

The California Supreme Court appears to have ruled that although a Bar applicant bears the burden of proving his initial moral fitness, the Committee of Bar Examiners bears the rebuttal burden of proving the non-rehabilitation of that applicant once there has been a determina- tion of moral unworthiness.

The Supreme Court of North Carolina in In re Elkinsg addressed the moral character of an applicant who had been convicted of "illegal entry and secretly peeping into a room occupied by a female person."1° Following application to the Bar, the Board of Examiners concluded that "Elkins entered the attic and drilled the holes for the purpose of secretly peeping into the bedroom of the adjoining apartment and that he took his camera into the attic with the specific intent of photographing the female occupants . . . . " I1 The Board went on to note that "even if Elkins' prior acts of misconduct were not dispositive of his character determina- tion, the [subsequent] false statements and testimony before the Board demonstrated the applicant's present lack of good moral character."12

The North Carolina Supreme Court thereafter reversed an order by the Superior Court requiring that the applicant "be granted a law license if he passed the [bar]."13 In turn, the high court affirmed the Board's finding that the applicant had divested himself of the requisite moral

.character by way of his prior actions and the presentation of false testimony during the character inquiry.I4 Accordingly, the court ruled

8. Id. at -, 666 P.2dat 13-14, 193 Cal. Rptr. at 156-157. Thecourt ordered the Committee of Bar Examiners to either admit the applicant to the State Bar or hold further hearings to determine his capacity to practice.

9. 308 N.C. 317, 302 S.E.2d 215 (1983). 10. Id. at , 302 S.E.2d at 217. 11. Id. The applicant was discovered with study materials, a flashlight, drill,

keyhole saw, tripod, brace, and a 35 millimeter camera. 12. Id. 13. Id. a t , 302 S.E.2d at 216. 14. Id. at , 302 S.E.2d at 221. The court reasoned that: In reaching this determination, it is unnecessary to decide 'whether the Board should rely on a finding that an applicant lied under oath when the finding is based on nothing more than the applicant's denial of accusations against him.' In re Moore, 301 N.C. 634,641,272 S.E.2d 826,830 (1981) (emphasis

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that the applicant presently lacked moral fitness to sit for the North Carolina Bar examination. ''

A Maryland Court of Appeals also recently addressed the relation- ship of prior criminal conduct and the capacity to practice law in Ap- plication of James G.I6 The applicant had previously been charged with "conspiring to commit forgery, forgery and uttering, murder and accessory to commit murder, homicide and assault." l 7 Of the above charges, the applicant was convicted of six counts of forgery involving the use of a credit card and plead nolo contendere to simple assault."

After an extensive review of the circumstances surrounding the ap- plicant's criminal past the court concluded that "the convincing evidence of the applicant's rehabilitation, . . . established that he had the present good moral character to permit him to be granted the privilege of admission to the Bar of Maryland."I9

I I. A ttorney-Client Communications

The heart of the attorney-client relationship evolves from the basic principal that "a lawyer should preserve the confidences and secrets of a client."20 In United States v. Weger,2' the Seventh Circuit faced the problem of defining the scope of the preservation duty within the con- text of the attorney-client privilege. The court expressly adopted the rule that "the [attorney-client] privilege protects only the client's confidences, not things which, at the time, are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer's observation of them."22 Accordingly, the court concluded that the client had waived the privilege by the use of her attorneys' letterhead for fraudulent purposes.23

added). We emphasize that the present case involves much more than an applicant's mere protestation of his innocence of the act which he is accused of committing. The Board was presented with testimony that was internal- ly inconsistent, intrinsically implausible and repeatedly contradicted by substantial evidence. 15. Id. U.S. Appeal is now pending. 16. 296 Md. 310, 462 A.2d 1198 (1983). 17. Id. at , 462 A.2d at 1199. 18. Id. The charges of murder and assault were dismissed while the charge of

homicide and assault resulted in a verdict of not guilty. 19. Id. at , 462 A.2d at 1202. 20. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, CANON 4 (1980). 21. 709F.2d 1151 (7th Cir. 1983). 22. Id. at 1154 (quoting Clanton v. United States, 488 F.2d 1069, 1071 (5th Cir.

1974)). 23. 709 F.2d 1151, 1154 (7th Cir. 1983). The court reasoned:

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In United States v. Lawless,24 the Seventh Circuit delineated the actual limits of the attorney-client privilege. The court reasoned that "[tlhe claim of privilege must be made and sustained on a question- by-question or document-by-document basis; a blanket claim of [attorney-client] privilege is unac~eptable."~~ Based on the above analysis, the court ruled that federal tax preperation documents which had been delivered to an attorney were not within the narrow confines of the attorney-client privilege.26 The result rested on the rule that "[wlhen information is transmitted to an attorney with the intent that the information will be transmitted to a third party (in this case on a tax return), such information is not ~onfidential.~'

111. Conflicts of Interest

In Narel Apparel Ltd. v . American Utex Intern. ,28 the Appellate Division of the New York Supreme Court ruled that an attorney should "not be permitted to put himself in a position where, even unconsciously he will be tempted to 'soft pedal' his zeal in furthering the interests of one client in order to avoid an obvious clash with those of another."29

It should be noted that the attorney-client privilege was not created to shield clients from charges for fraudulent conduct, . . . . In this fact situation there is prima facie evidence that the client abused the attorney-client relation- ship in the taking of her attorney's letterhead stationery and using it to com- mit a fraud, and thus 'the seal of secrecy is broken' and the attorney-client privilege is waived.

Id. at 1156 (quoting In re Special September 1978 Grand Jury Proceedings (11)), 640 F.2d 49, 61 (7th Cir. 1980)).

24. 709 F.2d 485 (7th Cir. 1983). 25. Id. at 487 (citing United States v. First State Bank, 691 F.2d 332, 335 (7th

Cir. 1982)). 26. Id. at 488. 27. Id. at 487 (citing Cotton v. United States, 306 F.2d 633 (2d Cir. 1962), cert.

denied, 371 U.S. 951 (1963)). See also Hughes v. Wallace, 429 So. 2d 981 (Ala. 1983) (statements made by client to an attorney which by their nature must be communicated to the public, or to a third person, are not protected by attorney-client privilege); MortgageAmerica v. American Nat. Bank of Austin, 651 S.W.2d 851 (Tex. Civ. App. 1983) (mere delivery of a pre-existing document to an attorney does not automatically invoke attorney-client privilege). Accord In re Bekins Storage Co., 118 Misc. 2d 173, 460 N.Y.S.2d 684 (1982) (intent to disclose the contents of a document in the final ex- ecuted agreement to third persons does not destroy the attorney-client privilege prior to actual disclosure).

28. 92A.D.2d913, 460N.Y.S.2d 125 (N.Y. App. Div. 1983). 29. Id. at , 460 N.Y.S. 2d at 128 (quoting Estates Theatres v. Columbia

Pictures Industries, 345 F. Supp. 93, 99 (S.D.N.Y. 1972)).

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Based on the above premise, the court disqualified the attorney of record due to an "appearance of impr~priety." '~

Cases like Narel Apparel exemplify the ethical policies behind the rule that "[a] lawyer should exercise independent professional judgment on behalf of a client."" Within the context of the above maxim, a per- vasive problem faced by many courts involves an attempt to define the exact point that client conflicts create an atmosphere where an attorney begins to "soft pedal his zeal."32

The North Carolina Court of Appeals in Lowder v. All Star Mills, I ~ c . ~ ~ expressed the view that ". . . if an attorney has formerly represented an adverse party in matters substantially related to the subject of the action, the attorney should be disqualified, nothing else a ~ p e a r i n g . " ~ ~ The court further noted:

It is not necessary to show the attorney received confidential infor- mation. The ethical duty of an attorney under EC 4-4 is broader than the attorney-client privilege. An attorney should not use against a former client information he has received while representing that client although the information is not confidential and is available to others.3s

Beyond threshold conflict considerations, one of the most controver- sial representation dilemmas involves multiple criminal defendant^.^^ In Doe v. A Gorp.,." the Fifth Circuit noted that "[a] potential or even real conflict of interest may, of course, be waived, even in criminal

30. 92A.D. 2d913, , 460 N.Y .S.2d 125, 128 (N.Y. App. Div. 1983). The court noted that the attorney had placed himself in a position where he would be cross- examining two of his own clients.

3 1. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, CANON 5 (1 980). 32. Id. 33. 60 N.C. App. 275, 300 S.E.2d 230 (1983). 34. Id. at , 300 S.E.2d at 234. 35. Id. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, EC 4-4 (1980) provides

in part: The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge . . . .

Id. 36. See generally, Comment, Conflicts of Interest in Public Defender Offices,

8 J. LEGAL PROF. 203 (1983). 37. 709 F.2d 1043 (5th Cir. 1983). 38. Id. at 1050 (citations omitted).

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Many states, however, have not accepted the steadfast rule that all conflicts of interest are subject to client waiver. The Oregon Supreme Court in'the case of In re Jans,Ig recently refused to adopt a waiver policy under either a criminal or civil context. The court ruled that "[ilt is never proper for a lawyer to represent clients with conflicting interests no matter how carefully and thoroughly the lawyer disclosed the possible effect and obtains consent."*O

IV. Discipline of Practicing Attorneys

The area of ethics which probably has the most impact on attorneys, and the status society affords the legal profession, is that of attorney discipline. Every year courts render countless decisions which attempt to delineate contemporary professional standards. The following cases represent a few of the recent rulings.

The New Jersey Supreme Court in the case of In re McAlesher,*' ruled that the murder of a spouse warrants disbarment. The court re- jected the attorney's contention that his chronic alcoholism constituted a "sufficient mitigating factor" to offset the harsh di~cipline."~ Accord- ingly, the attorney's "privilege" to practice law was revoked."'

In The Florida Bar v. Pettie," the Florida Supreme Court considered the appropriate disciplinary action to be taken against an attorney in- volved in a criminal conspiracy to import 15,000 pounds of marijuana.** Following an initial disciplinary hearing, a referee recommended di~barment."~ On appeal, the attorney challenged the propriety of an ab- solute revocation. The state supreme court concluded that although the attorney's actions were undisputably illegal, "there was nothing in his

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39. 295 Or. 289, 666 P.2d 830 (1983). 40. Id. at -, 666 P.2d at 833. The court went on to reject one of the major

rationales behind allowing conflict waivers: We are fully aware that this unyielding rule may raise concerns, particularly in smaller towns where two clients of the same lawyer, with conflicting in- terests, often request the lawyer to serve each of them regarding a trans- action between them. There cannot be an exception for small towns.

Id. a t , 666 P.2d at 833, n.7 (citation omitted). Compare State v. Brown, 644 S.W. 2d 418 (Tenn. Ct. App. 1982)(A co-defendant's counsel has no obligation to protect interests of a co-defendant; his duty and obligation is to his client alone).

41. 93 N.J. 486, 461 A.2d 1122 (1983). 42. Id. at -, 461 A.2d at 1124. 43. Id. 44. 424 So. 2d 734 (Fla. 1982). 45. Id. 46. Id. at 736.

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participation in the five overt acts with which he was charged that ap- proached lying, cheating, defrauding, or untrustw~rthiness."~~

Based on the above analysis, and a variety of mitigating cir- cumstances, the court rejected the finding of the referee and ordered the sanction instead to be the suspension from the practice of law, in the State of Florida, for one year.48

In Matter of Galang," the Appellate Division for the New York Supreme Court affixed disbarment as the proper sanction for an attorney convicted of a felony under the laws of the United state^.^' The attorney was "sentenced to five years imprisonment to serve three months, with the court suspending execution of the remainder of sentence and placing respondent on two years pr~bation."~' The sentence resulted from a con- viction of willfully presenting false immigration and naturalization papers.52 Accordingly, the court ruled that the conviction "under the Federal statutes would constitute a felony" in New York and ordered that the attorney's name be stricken from the roll of counselors at law."

In Ohio State Bar Ass'n. v. O r o s ~ , ~ * the Ohio Supreme Court ordered disbarment of an attorney for conduct culminating in charges of "posses- sion of cocaine, conspiracy to possess cocaine, and being an accessory after the fact to conspiracy to traffic in ~ a n n a b i s . " ~ ~ The court premised the sanction on the grounds that the conduct involved moral turpitude, as well as dishonesty, fraud, deceit and mi~representation.~~

47. Id. at 737. The court went on to note: The present case is clearly atypical in that respondent voluntarily initiated contact with law enforcement authorities, cooperated with those authorities, suffered severe economic loss, closed his law practice, admitted his wrong, and risked his life to help further the investigation.

Id. at 738. 48. Id. at 738. 49. 94 A.D.2d 280, 464 N.Y .S.2d 163 (1983). 50. Id. at -, 464 N.Y.S.2d at 164. 51. Id. 52. Id. See 18 U.S.C. 8 1546 (1966). 53. 94 A.D.2d 280, -, 464 N.Y.S.2d 163, 164-165 (1983). 54. 5 Ohio St. 3d 204, 449 N.E.2d 1310 (1983). 55. Id. "The court withheld sentencing on the condition that respondent pay any

fines of $1,000 and $5,000 on each count, respectively, and successfully complete five years of probation." Id. The attorney was also convicted on a plea of nolo contendere on being an accessory after the fact and thereafter received a prison term of five years.

56. Id. The attorney was specifically found to have violated DR 1-102(A)(3), (4) and (6) of the MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1980). DR 1-102 provides in part:

(A) A lawyer shall not:

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In the Matter of Lev in~on ,~ ' the Indiana Supreme Court ordered disbarment of an attorney convicted of three counts of public indecen~y.'~ The court ruled that the conduct was of "such nature as to establish the requisite baseness or depravity of social duty to constitute an act of moral t ~ r p i t u d e . " ~ ~ The court further found the attorney guilty of neglecting legal matters, engaging in conduct prejudicial t o the administration of justice and various other types of professional m i s c o n d ~ c t . ~ ~ The court reasoned that it "must protect the public from professional conduct of this n a t ~ r e . " ~ '

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(3) Engage in illegal conduct involving moral turpitude. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepre-

sentation. * * *

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

Id. 57. 444 N.E.2d 1175 (Ind. 1983). 58. Id. at 1176. The attorney was observed by police, "standing at a window

in his residence, nude, masturbating and waving t o attract attention."Id. 59. Id. 60. Id. at 1176-1177. 61. Id. at 1177.

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