- Very Short Commentary: Eleven Commandments
- Commandment Seven (#7) Avoid Dueling Capacities (Conflict Problems)
- LEGAL ETHICS:COMMANDMENT TEN: MENTOR CAREFULLY BUT HUMANELY: INSIST ON IT.
- LEGAL ETHICS: COMMANDMENT ELEVEN: DOUBT? STRESS? GET HELP!
- LEGAL ETHICS: COMMANDMENT NINE: FIGHT FAIR, DON’T CHEAT
- LEGAL ETHICS; COMMANDMENT EIGHT: KEEP A CIVIL TONGUE IN YOUR HEAD.
- LEGAL ETHICS: COMMANDMENT SEVEN: AVOID DUELING CAPACITIES
- COMMANDMENT SIX: SERVE SILENTLY (SORT OF)!
- COMMANDMENT FOUR: PERFORM PROMPTLY and REASONABLY
- LAWYER CRIMES: COMMANDMENT FIVE: DON’T DO THE CRIME
- LEGAL ETHICS: COMMANDMENT TWO: NEVER, NEVER, NEVER LIE.
- LEGAL ETHICS: COMMANDMENT ONE: DON’T STEAL THE CLIENT’S MONEY
Commandment Four Was Published as a Blog on January 16, 2015
Some of the Blogs will contain supplementary additions. Those added after January 1, 2015 will probably be dated, barring oversight. Readers may note that many of the cites are Texas cases. This resulted from the history of the contents of these blogs. The most informal ones are at the end.
Given the purposes and context in which the early versions of the essays were written, many of the legal rules explicitly numbered are from The Texas Rules that were built upon the ABA Model Rules.
This blog, like some of the others, will contain supplementary additions. Like the others, it will also use some abbreviations from time to time: L for lawyer, LF for law firm, C for client.
COMMANDMENT FIVE: DON’T DO THE CRIME
• 8.04(a)(2) Lawyers
shall not commit serious crimes. Lawyers
shall not commit non-serious crimes that reflect adversely on the lawyers’
honesty, trustworthiness, or fitness as a lawyer[.]
shall not engage in “conduct involving dishonesty, fraud, deceit or
shall not obstruct justice.
1997). (Shockingly, the lawyer received
only one-year suspension.)
discussed above, O’Hagan used insider information available to him, because he
was a partner of a law firm, to make a tidy profit through call options. He used the proceeds of this scam to cover up an embezzlement from his law
firm. O’Hagan was convicted of various
state crimes. State v. O’Hagan, 474 N.W.2d 613 (Minn. App.
1991). The state of Minnesota
disbarred him. In re O’Hagan, 450
N.W.2d 571 (Minn. 1990). Eventually, the federal government issued a
57-count indictment alleging 20-counts of mail fraud, 17-counts of fraudulent
trading in connection with a tender offer, and three counts of violating
federal money laundering statutes. A
jury convicted O’Hagan on all 57-counts, and he was sentenced to 41 months in
federal prison. See United States
v. Grossman, 843 F.3d 78 (2nd
cir. 1988). (Allan Dershowitz argued the appeal for
Grossman. His conviction was affirmed.)
information, lawyers have extensive opportunities to commit various types of
fraud. Such offenses are particularly
sanctionable because they directly reflect on the lawyer’s (and the
profession’s) honesty and trustworthiness.
See In re Druck, 747 A.2d 779 (N.J. 2000) (attorney disbarred for aiding and abetting
wire fraud). See also In re Lurie,
747 A.2d 780 (N.J. 2000) (similar).
Sometimes, these things are so serious that the lawyer even asks to be
disbarred. In re Adams, 762 So.2d
617 (La. 2000) (lawyer convicted of conspiracy to commit mail fraud, wire
fraud, and money laundering).
to commit fraud for their own benefit.
One lawyer filed a series of false requests for unclaimed funds held by
a county. He “falsely represented
himself as attorney for 68 persons entitled to such funds, and forged claim
forms, retainer agreements and claimants’ endorsements on checks issued by the
county.” In re Kuhnmuench, 609
N.W.2d 471 (Wis. 2000) (L was disbarred).
utilizing their law offices or their trust accounts in ways which are “too
close” to the criminal activities of their clients. It is never a good idea for a lawyer
to permit a non-lawyer client to utilize his law office to pursue his business
affairs. (Why do you suppose large law
firms have telephone booths at or near their elevator lobbies?)54
c. Lawyers and Diverse Crimes. Sometimes L’s just do criminal things. Often they re connected to the sorts of things Ls do as Ls. For example, as these things go, a good many lawyer criminal activities have to do with securities fraud (e.g., the sale of stock they don’t own) or the sale of condo notes, where they don’t exists. Attorney Fred Todd, a New Jersey lawyer, got a 46 month federal sentence for this at the age of 61, plus$6.53 restitution payment obligation. Someone on his team got 5 years, so one assumes that Fred helped “hang” his buddy–a buddy that obviously needed to be “hanged.”
and discloses this fact to a former client, the lawyer may be subject to
discipline, as well as conviction for an attempted obstruction of justice. Office of Disciplinary Counsel v. Klaas,
742 N.E.2d 612 (Ohio 2001). Question:
What about a current client?
criminal fraud and lead to criminal conviction against the deprivation of a law
license. In re Bankston, 749 A.2d
739 (D.C. App. 2000), relying upon United States v. Bankston, 182
F.3d 296 (5th Cir. 1999). (Bankston was
a lawyer and a state senator in Louisiana who was involved in extortion
activities in the video poker industry.)
money laundering statutes will lead to discipline, even while an appeal may be
pending. Kentucky Bar Ass’n v. Rorrer,
28 S.W.3d 308 (Ky. 2000).
(Ga. 2000), an attorney filed a petition to surrender his license
voluntarily. The supreme court held that
the acceptance of that petition was justified, since the lawyer had been
convicted of the felony offense prohibiting the knowing transmission of
fraudulently obtained money and foreign commerce.
set up by Drug Enforcement Administration agents, has resulted in the seizure
of more than $10 million in cash and $72 million worth of cocaine, and
indictments against five Colombians operating in Atlanta for drug trafficking
and money laundering.
as stockbrokers–complete with official licenses from the Securities and
Exchange Commission–to lure the drug smugglers to use their brokerage as a
vehicle for laundering their cash.
Although the agents did not actually make any stock trades, they did
launder $16.2 million to maintain the appearance of being a “legitimate”
indicted in Atlanta, the nationwide operation resulted in an additional 47
arrests and seizure requests for funds in 59 accounts at 34 U.S. banks and 282
accounts at foreign banks.” 6 Business Crimes Bulletin 2 (January
2000). A lawyer can easily be caught in
this type of mess if he is otherwise up to no good.
Of course, judges can be stung too.
even if the conviction is only a misdemeanor.
In re Tucker, 766 A.2d 510 (D.C. App. 2000).
discipline. In re Elinoff, 22
P.3d. 60 (Colo. 2001).
drop a disciplinary action may itself lead to discipline. In re Maxwell, 783 So.2d 1244 (La.
tickets can lead to discipline. In re
Tucker, 766 A.2d 510 (D.C. App. 2000).
require businesses to pay money to public officials to facilitate business
transactions. Such conduct is contrary
to the Foreign Corrupt Practices Act of 1977.
The lawyer who advises a company to make such payments in conformity
with local custom could easily find himself guilty of conspiring to break this
about foreign transactions. This is a bad idea.
Stuart Demming, Co-Chair of the ABA Task Force on International
Standards for Corrupt Practice, sponsored by the ABA section of International
Law and Practice, says that in his view, “the ethical obligations of U.S.
lawyers follow them wherever they go[.]”
Everett F. Sherman, Dean of
Tulane University School of Law in New Orleans, Louisiana agrees. See Margaret Graham Tebo, A Treacherous
Path Ethics Rules May Seem Clear, but in the Changing World of Commerce They
Can Become Murky, 86 ABA Journal
54,55 (February 2000).
sanctions for transgressions committed in their capacity as employers. See Iowa Sup. Ct. Bd. of Prof’l Ethics and
Conduct v. Morris, 604 N.W.3d 653 (Ind. 2000) (attorney subjected to
criminal sanctions and indefinite suspension from bar for failure to pay
employee’s withholding taxes. Noted the
court, “[the defendant’s] conduct not only violate[d] a criminal statute, but
involve[d] moral turpitude. [Cites
omitted.] It is tantamount to taking an
employee’s money.” Id. at
D. Assorted Supplements:
1. L already suspended for non payment of bar dues, forged a bankruptcy judge’s signature on a court order. Got 16 month in federal who scow. + 3 years of supervised release (New York case- 2016).
Originally posted on 01/16/2015 @ 7:37 pm