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Recent Significant Ethics Cases
The scope of this comment addresses recent judicial decisions
in- volving ethical considerations. The cases represent selected
rulings which have a significant impact on the ethical
responsibilities of the contem- porary legal practitioner.
I. Admission to Practice
A recurring problem faced by Bar Associations concerns the basic
qualifications of a Bar applicant. In Florida Bd. of Bar Examiners
In Re Hale,' the Florida Supreme Court addressed the issue of an
appli- cant's academic background. Since 1955, Florida had required
that "all applicants submitting to the Florida Bar Examination be
graduates of ABA-approved law schools or AALS [Association of
American Law Schools] law school^."^ The Florida Supreme Court,
however, had tradi- tionally entertained petitions to waive the
educational qualification requirement.' In Florida Bd. of Bar
Examiners In Re Hale, the court expressly rejected the future
consideration of academic waiver petitions. The Florida Supreme
Court concluded that the adoption of a non-waiver policy "while
conceivably a hardship to some, is in the best interest of the
legal profession in our ~ t a t e . " ~
Beyond threshold academic requirements, the general rule is that
an applicant carries the burden of exemplifying good moral
character as a prelude to Bar ~ertification.~ In Hightower v. State
Bar of Calif~rnia,~ the California Supreme Court confronted an
applicant who had been deemed, by the Committee of Bar Examiners,
as lacking moral fitness.' After establishing that an applicant
carries the burden of proving good moral character, the court
noted:
W e must conclude that petitioner's activities of practicing
law
1. 433 So. 2d 969 (Fla. 1983). 2. Id. at 971. 3. Id. The court
noted that since 1976 there had been fifty-five petitions
attempting to waive the academic prerequisite. Of those
petitions only nine were granted. 4. Id. at 972. The court further
reasoned that the use of waiver petitions in-
volved an excessive amount of judicial time as well as expense.
5. See H. DRINKER, LEGAL ETHICS 46 (1954). 6. 34 Cal.3d 150, 666
P.2d 10, 193 Cal. Rptr. 153 (1983). 7. Id. The basis for the
finding rested on the fact that the applicant had been
involved in the unlawful practice of law. The applicant had
graduated in 1976 and pass- ed the California Bar in 1979 after his
seventh attempt.
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The Journal of the Legal Profession
minative if the petitioner demonstrates his rehabilitation and
moral qualification to become a member of the Bar . . . . While the
showing of rehabilitation is not overwhelming, there is substantial
evidence of rehabilitation, and the State Bar furnishes no basis to
reject that evidence. There is no evidence indicating that
petitioner is not rehabilitated.8
The California Supreme Court appears to have ruled that although
a Bar applicant bears the burden of proving his initial moral
fitness, the Committee of Bar Examiners bears the rebuttal burden
of proving the non-rehabilitation of that applicant once there has
been a determina- tion of moral unworthiness.
The Supreme Court of North Carolina in In re Elkinsg addressed
the moral character of an applicant who had been convicted of
"illegal entry and secretly peeping into a room occupied by a
female person."1° Following application to the Bar, the Board of
Examiners concluded that "Elkins entered the attic and drilled the
holes for the purpose of secretly peeping into the bedroom of the
adjoining apartment and that he took his camera into the attic with
the specific intent of photographing the female occupants . . . . "
I1 The Board went on to note that "even if Elkins' prior acts of
misconduct were not dispositive of his character determina- tion,
the [subsequent] false statements and testimony before the Board
demonstrated the applicant's present lack of good moral
character."12
The North Carolina Supreme Court thereafter reversed an order by
the Superior Court requiring that the applicant "be granted a law
license if he passed the [bar]."13 In turn, the high court affirmed
the Board's finding that the applicant had divested himself of the
requisite moral
.character by way of his prior actions and the presentation of
false testimony during the character inquiry.I4 Accordingly, the
court ruled
8. Id. at -, 666 P.2dat 13-14, 193 Cal. Rptr. at 156-157.
Thecourt ordered the Committee of Bar Examiners to either admit the
applicant to the State Bar or hold further hearings to determine
his capacity to practice.
9. 308 N.C. 317, 302 S.E.2d 215 (1983). 10. Id. at , 302 S.E.2d
at 217. 11. Id. The applicant was discovered with study materials,
a flashlight, drill,
keyhole saw, tripod, brace, and a 35 millimeter camera. 12. Id.
13. Id. a t , 302 S.E.2d at 216. 14. Id. at , 302 S.E.2d at 221.
The court reasoned that: In reaching this determination, it is
unnecessary to decide 'whether the Board should rely on a finding
that an applicant lied under oath when the finding is based on
nothing more than the applicant's denial of accusations against
him.' In re Moore, 301 N.C. 634,641,272 S.E.2d 826,830 (1981)
(emphasis
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Recent Ethics Cases 259
that the applicant presently lacked moral fitness to sit for the
North Carolina Bar examination. ''
A Maryland Court of Appeals also recently addressed the
relation- ship of prior criminal conduct and the capacity to
practice law in Ap- plication of James G.I6 The applicant had
previously been charged with "conspiring to commit forgery, forgery
and uttering, murder and accessory to commit murder, homicide and
assault." l 7 Of the above charges, the applicant was convicted of
six counts of forgery involving the use of a credit card and plead
nolo contendere to simple assault."
After an extensive review of the circumstances surrounding the
ap- plicant's criminal past the court concluded that "the
convincing evidence of the applicant's rehabilitation, . . .
established that he had the present good moral character to permit
him to be granted the privilege of admission to the Bar of
Maryland."I9
I I. A ttorney-Client Communications
The heart of the attorney-client relationship evolves from the
basic principal that "a lawyer should preserve the confidences and
secrets of a client."20 In United States v. Weger,2' the Seventh
Circuit faced the problem of defining the scope of the preservation
duty within the con- text of the attorney-client privilege. The
court expressly adopted the rule that "the [attorney-client]
privilege protects only the client's confidences, not things which,
at the time, are not intended to be held in the breast of the
lawyer, even though the attorney-client relation provided the
occasion for the lawyer's observation of them."22 Accordingly, the
court concluded that the client had waived the privilege by the use
of her attorneys' letterhead for fraudulent purposes.23
added). We emphasize that the present case involves much more
than an applicant's mere protestation of his innocence of the act
which he is accused of committing. The Board was presented with
testimony that was internal- ly inconsistent, intrinsically
implausible and repeatedly contradicted by substantial evidence.
15. Id. U.S. Appeal is now pending. 16. 296 Md. 310, 462 A.2d 1198
(1983). 17. Id. at , 462 A.2d at 1199. 18. Id. The charges of
murder and assault were dismissed while the charge of
homicide and assault resulted in a verdict of not guilty. 19.
Id. at , 462 A.2d at 1202. 20. MODEL CODE OF PROFESSIONAL
RESPONSIBILITY, CANON 4 (1980). 21. 709F.2d 1151 (7th Cir. 1983).
22. Id. at 1154 (quoting Clanton v. United States, 488 F.2d 1069,
1071 (5th Cir.
1974)). 23. 709 F.2d 1151, 1154 (7th Cir. 1983). The court
reasoned:
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The Journal of the Legal Profession
In United States v. Lawless,24 the Seventh Circuit delineated
the actual limits of the attorney-client privilege. The court
reasoned that "[tlhe claim of privilege must be made and sustained
on a question- by-question or document-by-document basis; a blanket
claim of [attorney-client] privilege is unac~eptable."~~ Based on
the above analysis, the court ruled that federal tax preperation
documents which had been delivered to an attorney were not within
the narrow confines of the attorney-client privilege.26 The result
rested on the rule that "[wlhen information is transmitted to an
attorney with the intent that the information will be transmitted
to a third party (in this case on a tax return), such information
is not ~onfidential.~'
111. Conflicts of Interest
In Narel Apparel Ltd. v . American Utex Intern. ,28 the
Appellate Division of the New York Supreme Court ruled that an
attorney should "not be permitted to put himself in a position
where, even unconsciously he will be tempted to 'soft pedal' his
zeal in furthering the interests of one client in order to avoid an
obvious clash with those of another."29
It should be noted that the attorney-client privilege was not
created to shield clients from charges for fraudulent conduct, . .
. . In this fact situation there is prima facie evidence that the
client abused the attorney-client relation- ship in the taking of
her attorney's letterhead stationery and using it to com- mit a
fraud, and thus 'the seal of secrecy is broken' and the
attorney-client privilege is waived.
Id. at 1156 (quoting In re Special September 1978 Grand Jury
Proceedings (11)), 640 F.2d 49, 61 (7th Cir. 1980)).
24. 709 F.2d 485 (7th Cir. 1983). 25. Id. at 487 (citing United
States v. First State Bank, 691 F.2d 332, 335 (7th
Cir. 1982)). 26. Id. at 488. 27. Id. at 487 (citing Cotton v.
United States, 306 F.2d 633 (2d Cir. 1962), cert.
denied, 371 U.S. 951 (1963)). See also Hughes v. Wallace, 429
So. 2d 981 (Ala. 1983) (statements made by client to an attorney
which by their nature must be communicated to the public, or to a
third person, are not protected by attorney-client privilege);
MortgageAmerica v. American Nat. Bank of Austin, 651 S.W.2d 851
(Tex. Civ. App. 1983) (mere delivery of a pre-existing document to
an attorney does not automatically invoke attorney-client
privilege). Accord In re Bekins Storage Co., 118 Misc. 2d 173, 460
N.Y.S.2d 684 (1982) (intent to disclose the contents of a document
in the final ex- ecuted agreement to third persons does not destroy
the attorney-client privilege prior to actual disclosure).
28. 92A.D.2d913, 460N.Y.S.2d 125 (N.Y. App. Div. 1983). 29. Id.
at , 460 N.Y.S. 2d at 128 (quoting Estates Theatres v. Columbia
Pictures Industries, 345 F. Supp. 93, 99 (S.D.N.Y. 1972)).
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Recent Ethics Cases 26 1
Based on the above premise, the court disqualified the attorney
of record due to an "appearance of impr~priety." '~
Cases like Narel Apparel exemplify the ethical policies behind
the rule that "[a] lawyer should exercise independent professional
judgment on behalf of a client."" Within the context of the above
maxim, a per- vasive problem faced by many courts involves an
attempt to define the exact point that client conflicts create an
atmosphere where an attorney begins to "soft pedal his zeal."32
The North Carolina Court of Appeals in Lowder v. All Star Mills,
I ~ c . ~ ~ expressed the view that ". . . if an attorney has
formerly represented an adverse party in matters substantially
related to the subject of the action, the attorney should be
disqualified, nothing else a ~ p e a r i n g . " ~ ~ The court
further noted:
It is not necessary to show the attorney received confidential
infor- mation. The ethical duty of an attorney under EC 4-4 is
broader than the attorney-client privilege. An attorney should not
use against a former client information he has received while
representing that client although the information is not
confidential and is available to others.3s
Beyond threshold conflict considerations, one of the most
controver- sial representation dilemmas involves multiple criminal
defendant^.^^ In Doe v. A Gorp.,." the Fifth Circuit noted that
"[a] potential or even real conflict of interest may, of course, be
waived, even in criminal
30. 92A.D. 2d913, , 460 N.Y .S.2d 125, 128 (N.Y. App. Div.
1983). The court noted that the attorney had placed himself in a
position where he would be cross- examining two of his own
clients.
3 1. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, CANON 5 (1 980).
32. Id. 33. 60 N.C. App. 275, 300 S.E.2d 230 (1983). 34. Id. at ,
300 S.E.2d at 234. 35. Id. MODEL CODE OF PROFESSIONAL
RESPONSIBILITY, EC 4-4 (1980) provides
in part: The attorney-client privilege is more limited than the
ethical obligation of a lawyer to guard the confidences and secrets
of his client. This ethical precept, unlike the evidentiary
privilege, exists without regard to the nature or source of
information or the fact that others share the knowledge . . . .
Id. 36. See generally, Comment, Conflicts of Interest in Public
Defender Offices,
8 J. LEGAL PROF. 203 (1983). 37. 709 F.2d 1043 (5th Cir. 1983).
38. Id. at 1050 (citations omitted).
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262 The Journal of the Legal Profession
Many states, however, have not accepted the steadfast rule that
all conflicts of interest are subject to client waiver. The Oregon
Supreme Court in'the case of In re Jans,Ig recently refused to
adopt a waiver policy under either a criminal or civil context. The
court ruled that "[ilt is never proper for a lawyer to represent
clients with conflicting interests no matter how carefully and
thoroughly the lawyer disclosed the possible effect and obtains
consent."*O
IV. Discipline of Practicing Attorneys
The area of ethics which probably has the most impact on
attorneys, and the status society affords the legal profession, is
that of attorney discipline. Every year courts render countless
decisions which attempt to delineate contemporary professional
standards. The following cases represent a few of the recent
rulings.
The New Jersey Supreme Court in the case of In re McAlesher,*'
ruled that the murder of a spouse warrants disbarment. The court
re- jected the attorney's contention that his chronic alcoholism
constituted a "sufficient mitigating factor" to offset the harsh
di~cipline."~ Accord- ingly, the attorney's "privilege" to practice
law was revoked."'
In The Florida Bar v. Pettie," the Florida Supreme Court
considered the appropriate disciplinary action to be taken against
an attorney in- volved in a criminal conspiracy to import 15,000
pounds of marijuana.** Following an initial disciplinary hearing, a
referee recommended di~barment."~ On appeal, the attorney
challenged the propriety of an ab- solute revocation. The state
supreme court concluded that although the attorney's actions were
undisputably illegal, "there was nothing in his
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39. 295 Or. 289, 666 P.2d 830 (1983). 40. Id. at -, 666 P.2d at
833. The court went on to reject one of the major
rationales behind allowing conflict waivers: We are fully aware
that this unyielding rule may raise concerns, particularly in
smaller towns where two clients of the same lawyer, with
conflicting in- terests, often request the lawyer to serve each of
them regarding a trans- action between them. There cannot be an
exception for small towns.
Id. a t , 666 P.2d at 833, n.7 (citation omitted). Compare State
v. Brown, 644 S.W. 2d 418 (Tenn. Ct. App. 1982)(A co-defendant's
counsel has no obligation to protect interests of a co-defendant;
his duty and obligation is to his client alone).
41. 93 N.J. 486, 461 A.2d 1122 (1983). 42. Id. at -, 461 A.2d at
1124. 43. Id. 44. 424 So. 2d 734 (Fla. 1982). 45. Id. 46. Id. at
736.
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Recent Ethics Cases 263
participation in the five overt acts with which he was charged
that ap- proached lying, cheating, defrauding, or
untrustw~rthiness."~~
Based on the above analysis, and a variety of mitigating cir-
cumstances, the court rejected the finding of the referee and
ordered the sanction instead to be the suspension from the practice
of law, in the State of Florida, for one year.48
In Matter of Galang," the Appellate Division for the New York
Supreme Court affixed disbarment as the proper sanction for an
attorney convicted of a felony under the laws of the United
state^.^' The attorney was "sentenced to five years imprisonment to
serve three months, with the court suspending execution of the
remainder of sentence and placing respondent on two years
pr~bation."~' The sentence resulted from a con- viction of
willfully presenting false immigration and naturalization papers.52
Accordingly, the court ruled that the conviction "under the Federal
statutes would constitute a felony" in New York and ordered that
the attorney's name be stricken from the roll of counselors at
law."
In Ohio State Bar Ass'n. v. O r o s ~ , ~ * the Ohio Supreme
Court ordered disbarment of an attorney for conduct culminating in
charges of "posses- sion of cocaine, conspiracy to possess cocaine,
and being an accessory after the fact to conspiracy to traffic in ~
a n n a b i s . " ~ ~ The court premised the sanction on the
grounds that the conduct involved moral turpitude, as well as
dishonesty, fraud, deceit and mi~representation.~~
47. Id. at 737. The court went on to note: The present case is
clearly atypical in that respondent voluntarily initiated contact
with law enforcement authorities, cooperated with those
authorities, suffered severe economic loss, closed his law
practice, admitted his wrong, and risked his life to help further
the investigation.
Id. at 738. 48. Id. at 738. 49. 94 A.D.2d 280, 464 N.Y .S.2d 163
(1983). 50. Id. at -, 464 N.Y.S.2d at 164. 51. Id. 52. Id. See 18
U.S.C. 8 1546 (1966). 53. 94 A.D.2d 280, -, 464 N.Y.S.2d 163,
164-165 (1983). 54. 5 Ohio St. 3d 204, 449 N.E.2d 1310 (1983). 55.
Id. "The court withheld sentencing on the condition that respondent
pay any
fines of $1,000 and $5,000 on each count, respectively, and
successfully complete five years of probation." Id. The attorney
was also convicted on a plea of nolo contendere on being an
accessory after the fact and thereafter received a prison term of
five years.
56. Id. The attorney was specifically found to have violated DR
1-102(A)(3), (4) and (6) of the MODEL CODE OF PROFESSIONAL
RESPONSIBILITY (1980). DR 1-102 provides in part:
(A) A lawyer shall not:
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264 The Journal of the Legal Profession
In the Matter of Lev in~on ,~ ' the Indiana Supreme Court
ordered disbarment of an attorney convicted of three counts of
public indecen~y.'~ The court ruled that the conduct was of "such
nature as to establish the requisite baseness or depravity of
social duty to constitute an act of moral t ~ r p i t u d e . " ~ ~
The court further found the attorney guilty of neglecting legal
matters, engaging in conduct prejudicial t o the administration of
justice and various other types of professional m i s c o n d ~ c t
. ~ ~ The court reasoned that it "must protect the public from
professional conduct of this n a t ~ r e . " ~ '
Stephen Charles Moore
(3) Engage in illegal conduct involving moral turpitude. (4)
Engage in conduct involving dishonesty, fraud, deceit, or
misrepre-
sentation. * * *
(6) Engage in any other conduct that adversely reflects on his
fitness to practice law.
Id. 57. 444 N.E.2d 1175 (Ind. 1983). 58. Id. at 1176. The
attorney was observed by police, "standing at a window
in his residence, nude, masturbating and waving t o attract
attention."Id. 59. Id. 60. Id. at 1176-1177. 61. Id. at 1177.
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