As legal representatives and officers of the court, lawyers owe a duty of candor to their clients and to courts. But according to the ABA Model Rules of Professional Conduct, a lawyer is also a “public citizen having special responsibility for the quality of justice.” Thus, although lawyers’ ethical conduct is most closely scrutinized in the context of client relationships, members of the public can pursue grievances against lawyers based on their conduct and statements outside of a courtroom, as recently happened in grievances against lawyers for dishonest statements about widespread fraud in connection with  the results of the 2020 election.

But what ethical obligations do lawyers have in their private lives? To what extent can lawyers get in trouble for misconduct not in connection with a client representation? This article provides some guidance for lawyers regarding how their private conduct could impact their professional lives.

What You Do Before Being a Lawyer Can Impact Whether You Become a Lawyer

To be admitted to the bar, candidates must show that they possess the character and fitness requisite to be members. Some candidates face difficulty in getting admitted to a bar based on past misconduct (that obviously occurred before they were lawyers) that could suggest a lack of good judgment or honesty.

One high-profile example of this was the candidacy of Stephen Glass. After graduating from law school and passing the bar exam in California and New York, Glass was unable to become a licensed lawyer in either state because of his past notoriety as a reporter who had fabricated stories. Although Glass argued that he had reformed and demonstrated more than a decade of good behavior after his publishing scandal, the California Supreme Court ruled unanimously against him, finding that his misconduct bore directly on his character in matters that were critical to the practice of law.

Risks of Criminal Misconduct

What a person does after becoming a lawyer can also impact whether he or she remains a lawyer.

Rule 8.4 of the ABA Model Rules of Professional Conduct confirms that lawyers who commit certain types of crimes in their private lives could be subject to bar reprisal. Under Rule 8.4 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” or to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  Comment [2] confirms that while “a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” These offenses include violence, dishonesty or serious interference with the administration of justice.

Thus, lawyers face the potential imposition of professional discipline if they engage in illegal conduct that only involves their private life conduct. For example, in one case confirming the disbarment of a lawyer who had murdered his family (and had been hospitalized after it was found he was not mentally responsible for his acts), the New York Court of Appeals concluded that “courts are charged with the responsibility of insisting that lawyers exercise the highest standards of ethical conduct and insuring that only those fit to practice law are admitted to the Bar. Conduct that tends to reflect adversely on the legal profession as a whole and to undermine public confidence in it warrants disciplinary action.”

Risks of Private Misconduct

Lawyers can also face professional discipline for comments made to others in their private lives. In January, a Tennessee lawyer was suspended for four years for comments he made on Facebook in support of a friend involved in a difficult relationship. The lawyer commented that if the friend wanted “to kill” her ex-boyfriend, she should “lure” him to her home and “claim” that he broke in and that she feared for her life. He continued: “As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life.”

After the ex-boyfriend saw the posts and called authorities, a 60-day suspension was recommended for the lawyer. But the Tennessee Supreme Court elected to increase the sanction because his posts “fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process.” Notably, the court recognized that social media comments in particular could have a significant impact on a lawyer’s ethical obligations: “Lawyers who choose to post on social media must realize they are handling live ammunition; doing so requires care and judgment. Social media posts are widely disseminated, and the damage from a single ill-advised comment is compounded and magnified.”

Although bars take such conduct seriously, problems in an attorney’s personal life can be a mitigating factor when an authority is reviewing disciplinary action relating to an attorney’s private misconduct. For example, a Colorado lawyer was suspended from practice for three years for misconduct during her efforts to adopt her cousin’s baby, including falsifying information on the baby’s birth certificate and on documents filed with the court. Although the Colorado Supreme Court recognized that the lawyer had engaged in acts of dishonesty and counseled others to engage in dishonest conduct−which would typically result in disbarment−the court found that the lawyer’s emotional stress over her inability to conceive and to her prior legal work in supporting families and children merited significant weight in mitigation and ultimately concluded that her misconduct was an “aberration.”

Other bodies that regulate legal professionals follow similar paths. The United States Patent and Trademark Office, for example, has disciplined its members for private misconduct, including tax evasion and domestic violence.

Although most of the Rules of Professional Conduct focus on an attorney’s obligations to clients and to courts in connection with the attorney’s practice, there can still be risks for attorneys who engage in criminal or unethical conduct in their private lives.