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The commentary to 1.1 of The A.B.A. Standards for Lawyer Discipline and Disability Proceedings reads as follows:
. . . Disciplinary proceedings are not lawsuits between parities litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice. (Citation.) Thus the real question at issue in a disbarment proceeding is the public interest and the attorney's right to continue to practice a profession imbued with public trust.' In re Echeles, 430 F.2d 347, 349 (7th Cir. 1970). (Emphasis added.)
The lawyer's license proclaims to the public that the holder has been found qualified to practice law in accordance with standards imposed by the court, and that potential clients may therefore entrust their legal problems to him. The public has no adequate independent means by which to determine the lawyer's trustworthiness, and must rely upon the certification inherent in the license.
If there is evidence indicating that the lawyer is no longer meeting minimum standards, the court, on behalf of the public, is obligated to ensure an inquiry, or to provide a means of instituting an inquiry, to determine whether the license and the certification inherent therein should be revoked. The discipline and disability system is the structure established for that purpose.
"A court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Disciplinary procedures have been established for this purpose, not for punishment, but rather as a catharsis for the profession and a prophylactic for the public." Maryland State Bar Association v. Agnew, 318 A.2d 811, 814 (1974).
Missouri is in accord with the Standards in this regard.
In the Matter of Bear, 578 S.W.2d 928 (Mo. banc 1979):
The main purpose of a disciplinary proceeding is to inquire into the fitness of an attorney to continue in the practice of law. The objective is not to punish the attorney but to protect the public and to protect the integrity of the profession and the courts.
See also Matter of Dorsey, 731 S.W.2d 252, 253 (Mo. banc 1987).
But see In re Ruffalo, 390 U.S. 544, 550 (1968):
Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer" [and therefore due process principles apply].
Eric Steele and Raymond Nimmer, in a comprehensive article entitled Lawyers, Clients and Professional Regulation, 1976 A.B.F. Res. J. 919, 999 state:
The current policy goals of professional self-regulation may be expressed analytically in terms of three functions: (1) to identify and remove from the profession all seriously deviant members (the "cleansing" function), (2) to deter normative deviance and maximize complaince with norms among attorneys (the deterrence function), and (3) to maintain a level of response to deviance sufficient to forestall public dissatisfaction (the public image function)."
This formulation is similar to that expressed by the Missouri Supreme Court in In re Staab, 785 S.W.2d 551 (Mo. banc 1990):
The purpose of attorney discipline is to protect the public and maintain the integrity of the legal profession. In re Littleton, 719 S.W.2d 772, 777 (Mo. banc 1986). The discipline must be designed to correct any antisocial tendency on the part of the attorney as well as to deter others who might tend to engage in similar violations. In re Montrey, 511 S.W.2d 805, 806 (Mo. banc 1974) quoting In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973).
To what extent are these functions appropriate goals of a lawyer disciplinary system, and if appropriate, to what extent are they served by disciplinary rules and procedures currently in use? As we examine instances of discipline, consider which functions are being served and whether they are being served effectively.
Note that discipline may remove the offending attorney from practice and, at least theoretically, may give notice of the attorney’s infraction to the public, but it has no remedial effect. Clients and others harmed by attorney conduct are, for the most part, left to civil remedies (i.e., malpractice). Some states have, however, created client security funds to provide reimburse-ment to clients, but they are usually limited to intentional misappropriation of funds. See Steele and Nimmer, at 1007-1014.
A recent development in attorney discipline is the arrival of alternative dispute resolution. For example, in Missouri, pursuant to recently-amended Rule 5.10, appropriate complaints may be referred for mediation rather than formal disciplinary proceedings. This may allow for greater involvement by the complainant and a more satisfactory resolution of the matter.
Pursuant to the Model Rules, "[f]ailure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process." Scope Note, sec. 5. In Missouri, disciplinary counsel is authorized to investigate "any matter of professional misconduct." Mo. Sup. Ct. R. 5.08. Rule 8.4 (found in Missouri in Supreme Court Rule 4) defines professional misconduct. "It is professional misconduct for a lawyer to: violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another." 8.4(a). Rule 8.4(a) essentially incorporates violations or attempts to violate other model rules, and thus a violation of a substantive rule "conclusively establishes that respondent violated Rule 8.4(a)." In re Oberhellmann, 873 S.W.2d 851 (Mo. banc 1994). The remainder of Rule 8.4 sets out other forms of professional misconduct that are independent of the substantive rules.
Rule 8.4(b) makes it misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects." The prior version (under the Code) focused on crimes of moral turpitude, but the Rules chose to avoid use of that potentially vague term. It is not necessary that the attorney be convicted of a crime for this provision to apply as long as the conduct violates the criminal law. See Wolfram, MODERN LEGAL ETHICS § 3.3.2 at 91 (1986). Moreover, "a criminal acquittal does not bar subsequent disciplinary action." In re Storment, 873 S.W.2d 227, 229 (Mo. banc 1994).
Where an attorney has been convicted of a serious crime, discipline will frequently follow. In Missouri, proceedings under Missouri Supreme Court Rule 5.21 permit suspension of an attorney upon conviction of or plea to a felony or a misdemeanor involving moral turpitude. Once such conviction is final, discipline may be imposed by the Court based on motion of disciplinary counsel and a certified copy of the judgment without further proceedings. Rule 5.21(c). This section has been used to impose discipline on attorneys convicted of felonies as well as various misdemeanor offenses. The Court has found failure to pay income taxes, In re Duncan, 844 S.W.2d 443 (Mo. banc 1993); failure to pay child support, In re Warren, 888 S.W.2d 334 (Mo. banc 1994); and possession of cocaine, In re Shunk, 847 S.W.2d 789 (Mo. banc 1993), all to be offenses involving moral turpitude.
Rule 8.4(c) makes it misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." This provision is related to and overlaps with other provisions of the rules, including 8.4(b). See ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT (3d. ed. 1996) at 565. This Rule covers a broad variety of conduct, including forging a name on a client’s check, In re Griffey, 873 S.W.2d 600 (Mo. banc 1994); lying to opposing counsel as to availability for trial, in re Stricker, 808 S.W.2d 356 (Mo. banc 1991); and converting client funds. In re Phillips, 767 S.W.2d 16 (Mo. banc 1989). "’[I]t is not necessary to the exercise of the disciplinary powers of th[e] Court that the fraud committed by a lawyer be committed in his capacity as a lawyer . . . .’ In re Kirtz, 494 S.W.2d 324,328 (Mo. banc 1973). See also In re Paneck, 585 S.W.2d 477 (Mo. banc 1979)." In re Smith, 749 S.W.2d 408, 413 (Mo. banc 1988) As the Court noted in In re Disney, 922 S.W.2d 12, 15 (Mo. banc 1996):
Discipline for violation of this rule does not depend on the existence of an attorney-client relationship. . . .Questions of honesty go to the heart of fitness to practice law. . . . Misconduct involving subterfuge, failing to keep promises, and untrust-worthiness undermine public confidence in not only the individual but in the bar.
Rule 8.4(d) makes it misconduct to "engage in conduct that is prejudicial to the administration of justice." This provision is used in a wide variety of contexts and overlaps with other provisions. See, e.g., In re Westfall, 808 S.W.2d 829 (Mo. banc 1991) (reckless accusations against judge); In re Vails, 768 S.W.2d 78 (Mo. banc 1989) (failure to cooperate with disciplinary investigation); In re Bear, 578 S.W.2d 928 (Mo. banc 1979) (tampering with evidence by erasing a tape that, although inadmissible, was part of an ongoing investigation). Since this provision is generally used in conjunction with other Rules, the potential vagueness of this term has not been as problematic as it might be. It has, however, been challenged on occasion, although to date without success. See ANNOTATED RULES, at 568-69.
Although subsections (b) through (d) of Rule 8.4 provide for discipline in a broad range of circumstances, their use is not unlimited. In In re Mills, 462 S.W.2d 700, 701 (Mo. banc 1971), the Court stated (under similar provisions of the Code) that in Missouri, discipline is not appropriate for conduct "in the nature of bad taste and bad manners" if the attorney’s "honesty, integrity and moral character remain uncompromised."
Rule 8.4(e) prohibits an attorney from stating or implying an ability to influence a government agency or official and (f) prohibits knowingly assisting a judge in violating the relevant judicial code. For situations involving these rules, see ANNOTATED RULES, at 569-70.
The ABA proposed addition to Rule 8.4 of a section addressing bias and prejudice. The proposal was withdrawn and remains under consideration. Such a rule was adopted in Missouri in 1995 and makes it professional misconduct to:
manifest by words or conduct, in representing a client, bias or prejudice based upon race, sex, religion, national origin, disability, or age. This Rule 4-8.4(g) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, or age, or other similar factors, are issues.
Mo. Sup. Ct. Rule 4-8.4(g). The Rule only applies to attorneys in the course of representing a client, and difficult questions remain regarding the scope of the "legitimate advocacy" exception. There is strong reason to believe the Rule is designed more to make a statement than as a likely basis for discipline except in egregious cases.
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