In Vermont, at least three rules go to honesty.
- Rule 3.3 requires imposes a duty of candor to courts.
- Rule 4.1 prohibits misrepresentations of fact or law.
- Rule 8.4(c) prohibits conduct involving dishonesty, deceit, misrepresentation or fraud.
Astute readers might ask why we need Rule 8.4(c) when we already have Rule 4.1. Aren’t they redundant? Good question! But the answer is “no, they aren’t.”
By its language, Rule 4.1 applies “in the course of a representing a client.” By contrast, Rule 8.4(c) applies to conduct outside the attorney-client relationship. For example, imagine I do my usual amount of not planning and wait so long to purchase airline tickets to visit my father that they’re prohibitively expensive. So, what do I do? Like Costanza, I claim to be traveling to my friend’s aunt’s funeral in order to get a reduced fare.
Rule 4.1 wouldn’t apply because my lie didn’t occur in the course of representing a client. However, Rule 8.4(c) would get me because my conduct involves dishonesty, deceit, misrepresentation and fraud.
The Vermont Supreme Court has made it clear that Rule 8.4(c) does not apply to every “white lie,” but only to conduct that, in addition to involving dishonesty, deceit, misrepresentation or fraud, also adversely reflects on the lawyer’s fitness to practice.
For example, many years ago, my friend JJ called. His spidey-sense was going off. He asked what I was up to that night, (correctly) sensing I was on my way to a date with a woman of whom he did not approve. I told him I was on my way to dinner with my grandmother. Not an 8.4(c) violation. The opinion is here.
Alas, that’s the end of the CLE portion of today’s post. I think the conduct I’m about to relate is conduct that lawyers instinctively know to avoid without me suggesting that they do.
So, without further adieu, and speaking of Costanza and lying to attend a funeral . . .
There’s a story making the rounds in bar counsel circles. It involves disciplinary charges filed by the Illinois Attorney Regulation and Disciplinary Commission (“IARDC”). The story has been covered by The American Lawyer, the Legal Profession Blog, and The ABA Journal. The IARDC alleges that the lawyer:
- took the LSAT twice, scoring 158 & 173;
- explained the lower score in a law school application by stating that the LSAT was shortly after multiple surgeries (and rigorous post-surgery treatment) to remove a cancerous tumor from his stomach;
- years later, again used the cancer surgery excuse to request discovery extensions in at least two cases he was handling as a lawyer;
- requested a discovery extension in a third case, claiming that his son was scheduled for the exact same type of stomach/cancer surgery; and,
- asked a court to extend a deadline because he had to fly to Montreal for a relative’s funeral.
As you might guess, the IARDC alleges that the lawyer:
- never had cancer;
- does not have a son;
- does not have a son who has cancer; and,
- did not have relative who died and, thus, required a funeral.
Allegedly, the lawyer faked cancer, a child, a child with cancer, and a relative’s death.
Sometimes the only response is: