By Deborah Wolfe
Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective November 1, 2018, provides more specific guidance to lawyers relative to this duty. Rules 1.2.1, 1.6, 3.4, 4.1, 4.2, 4.3,7.1 through 7.5, and 8.4 are all implicated in this duty, as well as Business & Professions Code (“B&P”) sections 6068(d), 6106, and 6128, among others. This discussion will focus on the B&P Code sections, violations of which constitute cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.
Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.
The B&P Code is the source that allows the State Bar to prosecute lawyers for violations of ethical requirements, and section 6068 contains a long list of an attorney’s duties: “It is the duty of an attorney to do all of the following: …
(d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (Emphasis added.)
Opposing lawyers, as “officers of the court”, are duty-bound to not only tell the truth, but not to omit information that would cause the court or opposing counsel to be misled. This applies not only to litigated matters, but to “all causes confided to him or her”. See Shafer v. Berger, Kahn, et al. (2003) 107 Cal.App.4th 54 for a lengthy discussion of attorney misrepresentations which were determined to be fraudulent, including statements made by counsel during settlement negotiations.
B&P Code section 6106 states: “The commission of any act involving moral turpitude, dishonesty, or corruption whether the act is committed in the course of his relations as an attorney, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Emphasis added.) “Moral turpitude” has been defined by the California Supreme Court as “anything done contrary to justice or honesty.” See Bryant v. State Bar of California (1942) 21 Cal.2d 285.
B&P Code section 6128 states: “Every attorney is guilty of a misdemeanor who either:
Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.
…Any violation of the provisions of this section is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both. (Emphasis added.)
The B&P Code governs the conduct of all lawyers, no matter what area or type of practice involved. Read together, the above-referenced sections make it clear that as officers of the court, sworn to “preserve, protect, and defend the Constitution” as all must be in order to practice law in the State of California, lawyers are required to be truthful in all of their dealings or be guilty of a misdemeanor. This isn’t a “fine line” — it is black letter law. An attorney who is guilty of criminal conduct — whether misdemeanor or felony — can be assured that it will negatively affect their ability to practice law going forward.
Lawyers have enjoyed an elevated status in our society dating back hundreds of years due to the rules of honesty and truthfulness that are the hallmark of our profession. The legal profession has taken a beating in the very recent past (as well as the present) due to some high profile examples of lawyers engaging in dishonest or outright fraudulent, deceitful, and even criminal behavior. If we want to reclaim the prestige that once was given to the likes of Thomas Jefferson and Abraham Lincoln, then we must maintain adherence to truth and honesty, regardless of what the rest or society is doing. We cannot lose sight of our professional obligations for the sake of winning a trial or getting the upper hand for our clients in a transactional matter. We are responsible for letting our clients know that these Rules of ethics trump any client demands or instructions to engage in a dishonest act, which should start at the first meeting and be included in every attorney’s engagement agreement.
Deborah Wolfe is a member of the SDCBA LEC, a CLS in legal malpractice law and civil trial law, and has practiced law in San Diego for over 40 years.