Lawyers generally know their conduct when representing clients or appearing in court can be subject to review under the applicable bar rules. But courts and bars are becoming more proactive in reviewing lawyers’ fitness to practice based on missteps in their personal lives, separate from their professional activity.

To many bars and courts, a lawyer’s reputation can be tarnished by bad behavior in his or her personal life because such conduct can bear on the lawyer’s penchant for honesty or could even put the public at risk. Bars and courts reviewing a lawyer’s conduct as a private citizen often focus on the fact that members of the bar have elected a profession that is premised on morality, honesty and integrity.

Some lawyers, however, do not expect to be hauled in front of a bar to defend comments they made on a personal Facebook account. But just as lawyers take care to avoid breaching ethical rules in their practice, lawyers can also be aware that misconduct in their personal lives (whether criminal or not) can also lead to trouble with the bar.

Pre-Bar Admission Conduct’s Impact

A lawyer’s personal life can impact whether they are even admitted to the bar. For example, in Arizona, a former convicted murderer served over 17 years in prison. During his incarceration, he obtained his bachelor’s degree with honors and earned his law degree after being released on parole. Even though he then passed the Arizona bar exam, he was denied admission to the bar.

In an opinion issued over a decade ago, the Arizona Supreme Court focused on the violent nature of the applicant’s crime, as well as his apparent lack of candor regarding being questioned by police about an argument with his wife and issues with child support. The court also noted that, the more serious a previous crime, the harder it would be for a bar applicant to show current good moral character. Some state bars take an applicant’s criminal history quite seriously, no matter what has happened in intervening years.

As another example, recently students at Stanford Law School protested a speech given by a judge from the U.S. Court of Appeals for the Fifth Circuit. After the law school announced it would not reprimand any of the students, some federal judges announced they would no longer hire clerks from Stanford Law.

In response to a letter from Sen. Ted Cruz, R-Texas, the Texas Supreme Court noted that it intended to add a question to its bar application inquiring into applicants’ “incivility and violations of school policies.” In so doing, the court implied that a student’s participation in civil protests could impact whether they would be received in good standing by a state bar.

Although many have suggested the position taken in response to the law students is antithetical to free speech or other characteristics shared by effective lawyers (such as zealous advocacy), students interested in admission to the bar may want to consider whether their past conduct puts their admission at risk.

Noncriminal Conduct in an Attorney’s Private Life

Even after being admitted to the bar, what a lawyer does in his or her private life may affect his or her standing. For example, one South Carolina lawyer was recently suspended for six months and ordered to complete diversity training and mental health treatment based on comments he posted on his personal (albeit public) Facebook page. The court found that the lawyer’s comments about college-educated women and George Floyd violated the Lawyer’s Oath because they were “intended to incite” others.

“Going viral” can also create risks for lawyers. A video of a New York lawyer scolding restaurant employees for speaking in Spanish, making rude comments and threatening to call immigration led him to be investigated by the bar.

He eventually admitted that he “engaged in conduct that adversely reflects on his fitness as a lawyer,” which resulted in a public censure by the court. Although the court criticized the lawyer’s conduct, it found meaningful that he had made a public apology, otherwise had a spotless record and did not mention he was a lawyer during the viral incident.

Lawyers Can Face Disbarment for Criminal Conduct

Lawyers who commit certain types of crimes in their private lives can be subject to bar reprisal. Under Rule 8.4 of the ABA Model Rules of Professional Conduct, it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Comment [2] confirms that the bar is most concerned with “offenses that indicate lack of those characteristics relevant to law practice.” These offenses include violence, dishonesty, breach of trust or serious interference with the administration of justice.

Recently, two attorneys who were sentenced to over a year in prison for firebombing an empty New York Police Department vehicle during the 2020 Black Lives Matter protests were disbarred after their guilty pleas. On the other hand, a lawyer and former chairman of a prominent firm was permitted to stay in the profession after he paid $75,000 to assist his daughter’s admission to college (as part of the college admissions scandal).

Instead, the lawyer received a two-year suspension. The New York court noted that he showed “deep and genuine” remorse, such that his suspension (and not disbarment) “properly balance[d] [the] criminal conduct with the substantial evidence in mitigation, the protection of the public, maintaining the honor and integrity of the profession and as a deterrence to other from committing similar misconduct.”

Accordingly, being aware that attorneys may face discipline for what they do in their personal lives can help ensure that lawyers abide by their obligations under the rules.