Monday, June 4, 2007

More On Georgia Lawyer

Alan's post earlier today and link to David Giacalone's discussion raised the prospect of disciplinary charges against the Georgia lawyer who appears to have risked the lives/health of others by his travel. This led me to the Georgia version of Rule 8.4, which is radically narrower in its scope than the parallel ABA Model Rule. Model Rule 8.4(b) prohibits the commission of "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice in other respects." There is no requirement of a conviction or specific linkage to law practice. Further, Model Rule 8.4(c) prohibits "dishonesty, fraud, deceit or misrepresentation" without specific connection to law practice. By contrast, Georgia requires a conviction and that any dishonesty be in connection with "professional" conduct.

Is there precedent for sanctioning lawyers who recklesssly endanger life? You bet. Lawyers are suspended and disbarred for negligent homicide on a regular basis. If this lawyer is charged and convicted of a crime with comparable reckless intent, discipline should follow as night follows day. Absent such a conviction, it appears that Georgia's ethics rules have a nice (at least, nice for lawyers) loophole through which this conduct (assuming the worst in terms of recklessness) may escape sanction. (Mike Frisch)

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The Model Rule and the Georgia rule have quirky differences. For example, on its face, the Georgia rule covers any felony conviction -- with no apparent requirement of a link to fitness to practice law. Also, though the Model Rule does not require a "conviction," I wonder how many states conclude a lawyer has committed a "criminal act" without a conviction. It would be interesting to know the "legislative history" behind the Georgia differences. Or, did the Georgia rule come first?

Posted by: david giacalone | Jun 4, 2007 2:29:44 PM

Thanks for the clarification, Mike. I would not be surprised if the Georgia bar revisits its version of 8.4 in light of this example.

Posted by: Childress | Jun 4, 2007 4:06:26 PM

In D.C., it is quite common for lawyers to be sanctioned for criminal acts that do not result in a conviction-- In re Gil, 656 A.2d 303(D.C. 1995) is a leading case: "this court may properly look to the law of any jurisdiction that could have prosecuted...for the misconduct."

Posted by: Mike Frisch | Jun 5, 2007 7:04:13 AM

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