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) 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;

(d) knowingly assist a judge or judicial officer in conduct that is a violation of applicable canons of judicial conduct or other law;

(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;

(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

(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 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. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." The concept of "moral turpitude" may be construed to include offenses concerning matters of personal morality, such as adultery and comparable offenses, that 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 relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice 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] N.D.C.C. Section 27­14­02 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 a lawyer and counselor at law. Statutes also provide for revocation or suspension in other instances of misconduct, including 27­13­01 (duties of attorneys), 27­13­08 (misconduct of attorneys), 27­13­09 (permitting use of the attorney's name), 27­13­11 (involvement in the defense while a partner of the prosecutor), and 27­13­12 (involvement in the defense after 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 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.