Proposed Amendments to Rule 8.4, Rules of Professional Conduct
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate these rules, knowingly assist or induce another to do so, or do so through the acts of another;
(b) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(c) state or imply an ability to influence improperly a government agency or official;
(d) manifest, by words or conduct in connection with a judicial or administrative proceeding, bias or prejudice
, including 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 when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in the proceedings; or (d) (e) 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.
Many kinds of wrongful conduct reflect adversely on fitness to practice law. Some kinds, however, do not. In the past, the distinction between these two types of wrongful conduct was made on the basis of "moral turpitude." That test has been abandoned in favor of a more functional analysis. The concept of "moral turpitude" had been construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that had 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. Offenses involving violence, dishonesty or breach of trust, or serious and unjustifiable interference with the administration of justice, are likely to be in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations.
The legislature has adopted the functional test; it has provided, in Section 271402 of the North Dakota Century Code, 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 and counselor at law. The legislature has also provided for revocation or suspension in circumstances of a failure to perform the duties of the office and several specific 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, including 271301 (duties of attorneys), 271308 (misconduct of attorneys), 271309 (permitting use of the lawyer'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).
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.
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. 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 06/16/98, 10/14/98, 06/08/99, 11/19/99/ 02/23/00.