Regulatory authorities have often sought to impose professional discipline upon lawyers for engaging in purely private misconduct. The authority to do so stems both from legislative enactments and judicially adopted ethics rules. The underlying rationale is that certain private misbehavior may well demonstrate the lack of qualities necessary to practice law and harms the reputation of the bar in the eyes of the public. This would be true in the case of a serious criminal conviction or an instance of illegal or fraudulent conduct. On the other hand, purely private misconduct that has no connection to any duty owed to a client, the bar, or the public should not be the subject of disciplinary regulation.11
Hal R. Lieberman, formerly chief counsel to the Departmental Disciplinary Committee (First Department), is a partner at Hinshaw & Culbertson.
Endnotes:
1. Hal R. Lieberman and Richard Supple, "Private Conduct and Professional Discipline," NYLJ, July 23, 2002.
2. Judiciary Law §90(4)(a).
3. Judiciary Law §90(4)(d).
4. See, e.g., Matter of Silberman, 83 AD3d 95 (1st Dept. 2011) (six-year suspension for possessing and engaging in distribution of illegal narcotics); Matter of Goldman, 71 AD3d 9 (1st Dept. 2009) (one-year suspension for attorney who pleaded guilty to one count of failing to file New York State tax return, where attorney failed to file both state and federal tax returns for seven years); Matter of Clarey, 55 A.D.3d 209 (2d Dept. 2008) (one-year suspension for attorney who pleaded guilty to operating a motor vehicle under the influence of alcohol and leaving the scene of an accident); Matter of Felsen, 40 A.D.3d 1257 (3d Dept. 2007) (lawyer disbarred after being convicted out of state of forging a physician's signature to a prescription form in the name of a fictitious person in order to obtain a pain killer at a pharmacy; Matter of Ugweches, 69 AD3d 125 (1st Dept. 2009) (attorney automatically disbarred upon his conviction for the class D felony of second-degree assault).
5. Former EC 1-5 provided as follows:
A lawyer should be temperate and dignified, and should refrain from all illegal and morally reprehensible conduct. Because of the lawyer's position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.
When the new Rules of Professional Conduct took effect on April 1, 2009, Comment [2] to Rule 8.4, as originally adopted by the New York State Bar Association Committee on Standards of Attorney Conduct (COSAC) and the state bar, stated in pertinent part:
[2] …Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for illegal conduct that indicates lack of those characteristics relevant to law practice. Violations involving violence, dishonesty, fraud, breach of trust, or serious interference with the administration of justice are illustrative of illegal conduct that reflects adversely on fitness to practice law. Other types of illegal conduct may or may not fall into that category, depending upon the particular circumstances.
Referring to former EC 1-5 (and apparently responding to critics of Comment [2]), COSAC's 2011 Report to the House of Delegates said:
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