RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate these rules
Rules, knowingly assist or induce another to do so, or
do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness as a lawyer;
(b) (d) knowingly assist a
judge or judicial officer in conduct that is a violation of applicable rules
canons of judicial conduct or other law;
(c) (e) state or imply an
ability to influence improperly a government agency or official or to
achieve results by means that violate these Rules or other law;
(d) (f) engage in conduct
that is prejudicial to the administration of justice, including to knowingly
manifest through words or conduct in the course of representing a client, bias or prejudice based
upon race, sex, religion, national origin, disability, age, or sexual orientation, against parties,
witnesses, counsel, or others, except when those words or conduct are legitimate advocacy
because
race, sex, religion, national origin, disability, age, or sexual orientation is an issue in the
proceeding;
or
(e) (g) engage in other
conduct that is enumerated in the North Dakota Century Code as a basis for
revocation or suspension of a lawyer's certificate of admission.
Comment
[1] Lawyers are subject to discipline when they violate or attempt to violate these Rules, knowingly assist or induce another to do so or do so through acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is lawfully entitled to take.
[2] Many kinds of wrongful illegal conduct reflect
adversely on fitness to practice law, such as
offenses involving fraud and the offense of willful failure to file an income tax return. However,
some kinds of offenses carry no such implication. Some kinds, however, do not. In
the past
Traditionally, the distinction between these two types of wrongful conduct was
made on the basis
of was drawn in terms of offenses involving "moral turpitude." That
test has been abandoned in
favor of a more functional analysis. The concept of "moral turpitude" may be
construed to include
offenses concerning some matters of personal morality, such as adultery and
comparable offenses,
that had have no specific connection to fitness for the practice of law.
Although 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 necessary for the responsible
practice of the
profession relevant to law practice. Offenses involving violence, dishonesty
or, breach of trust, or
serious and unjustifiable interference with the administration of justice,
are likely to be in fall within
that category. A pattern of repeated offenses, even ones of minor significance when considered
separately, can indicate indifference to legal obligations.
[3] A lawyer who, in the course of representing a client knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, or sexual orientation violates paragraph (f) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (f). For example, a trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
[4] The legislature has adopted the functional test; it has provided,
in N.D.C.C. Section 271402
of the North Dakota Century Code, provides for the revocation or
suspension of the certificate of
admission of any lawyer who has committed an offense determined by the North Dakota
Supreme
Court to have a direct bearing on the lawyer's ability to serve the public as an
attorney a lawyer and
counselor at law. The legislature has Statutes also
provided provide for revocation or suspension
in circumstances of a failure to perform the duties of the office and several
specific other instances
of conduct; these are identified in the balance of Section 271402, and in
the sections referred to
generally or by number in that section misconduct, including
271301 (duties of attorneys),
271308 (misconduct of attorneys), 271309 (permitting use of the
lawyer's attorney's name),
271311 (involvement in the defense while a partner of the prosecutor), and
271312
(involvement in the defense after action is state's attorney involvement as
state's attorney or other
public prosecutor).
[5] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges to the regulation of the practice of law.
[6] Lawyers holding public office assume legal responsibilities going beyond those
of other
citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role
of
attorney a lawyer. The same is true of abuse of positions of private
trust such as trustee, executor,
administrator, guardian, agent, and officer, director or manager of a corporation or other
organization.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 12/13/85, 01/10/86 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 09/24/04, 04/08/05, 06/14/05, 09/09/05.