Thursday, January 14, 2021

"Private" Criminal Conduct A-OK For Georgia Lawyers

I was surprised to read in Law.com a statement attributed to the General Counsel of the Georgia State Bar to the effect that a lawyer admitted there could not be sanctioned for "private" criminal behavior absent a conviction.

Of course, that would not be remotely accurate in a jurisdiction that followed the ABA Model Rules.

I was again surprised to the learn of Georgia's careful narrowing of the class of lawyers who engage in criminal conduct that can be sanctioned.

RULE 8.4 MISCONDUCT
  1. It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:
    1. violate or knowingly attempt to violate the Georgia Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
    2. be convicted of a felony;
    3. be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law;
    4. engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;
    5. fail to pay any final judgment or rule absolute rendered against such lawyer for money collected by him or her as a lawyer within ten days after the time appointed in the order or judgment;

      1. state an ability to influence improperly a government agency or official by means that violate the Georgia Rules of Professional Conduct or other law;
      2. state an ability to achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
      3. achieve results by means that violate the Georgia Rules of Professional Conduct or other law;
    6. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
    7. commit a criminal act that relates to the lawyer's fitness to practice law or reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer, where the lawyer has admitted in judicio, the commission of such act.
    1. For purposes of this Rule, conviction shall include any of the following accepted by a court, whether or not a sentence has been imposed:
      1. a guilty plea;
      2. a plea of nolo contendere;
      3. a verdict of guilty; or
      4. a verdict of guilty but mentally ill.
    2. The record of a conviction or disposition in any jurisdiction based upon a guilty plea, a plea of nolo contendere, a verdict of guilty or a verdict of guilty but mentally ill, or upon the imposition of first offender probation shall be conclusive evidence of such conviction or disposition and shall be admissible in proceedings under these disciplinary rules.
  2. This Rule shall not be construed to cause any infringement of the existing inherent right of Georgia Superior Courts to suspend and disbar lawyers from practice based upon a conviction of a crime as specified in paragraphs (a) (1), (a) (2) and (a) (3) above.
  3. Rule 8.4 (a) (1) does not apply to any of the Georgia Rules of Professional Conduct for which there is no disciplinary penalty.

The maximum penalty for a violation of Rule 8.4 (a) (1) is the maximum penalty for the specific Rule violated. The maximum penalty for a violation of Rule 8.4 (a) (2) through (c) is disbarment.

The ABA version is linked here and pertinently provides that it is misconduct to

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; [or]

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...

 Whenever a jurisdiction departs from an ABA Model Rule, I wonder as to the motivation.

I respectfully find it hard to fathom a rule departure that makes it more difficult to sanction criminal (and dishonest) behavior by a member of the legal profession.  (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/01/private-criminal-conduct-a-ok-for-georgia-lawyers.html

Bar Discipline & Process | Permalink

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