Concept
Related Misconduct Provisions
Improper influence on government officials
Related Misconduct Provisions
Rule 8.4 begins with a single stem, “It is professional misconduct for a lawyer to:”, and each lettered paragraph finishes that sentence in its own way.1 Paragraph (e), the subject of the preceding sections, is one ending among several, and the others do not compete with it. Because each paragraph completes the stem on its own, a single episode of conduct can satisfy several at once; a charge under one neither requires nor excludes a charge under another. A lawyer who bribes an official, lies to an agency, or helps a judge break the judicial conduct rules has done something that paragraph (e) does not capture alone, and the remaining paragraphs are where that conduct is charged.
Five of those paragraphs bear on influence scenarios: (b) on criminal acts, (c) on dishonesty and deceit, (d) on conduct prejudicial to the administration of justice, (f) on knowingly assisting a judge in a violation, and (a) on violating the Rules through the acts of another. Paragraph (g) concerns a different harm. It forbids conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, and the other listed characteristics, in conduct related to the practice of law.2 It protects people and says nothing about government decision makers, so it can be set aside when sorting an influence problem.
The sorting task follows from what paragraph (e) punishes. That paragraph reaches what the lawyer states or implies about an ability to influence improperly or to achieve results by unlawful means, and the violation is complete when the statement is made.3 The conduct behind a statement — paying the official, deceiving the agency, pressing a decision maker in private, helping a judge — is a separate act, measured by a separate paragraph. For each piece of conduct in an exam stem, therefore, choose the paragraph that fits it; the best answer often names more than one.
Criminal Acts
Paragraph (b) makes it professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”4 The text sets two requirements: a criminal act, and an adverse reflection on the lawyer’s honesty, trustworthiness, or fitness. The second requirement sorts crimes by what they reveal about the person who holds the license. Clients hand over money and confidences that they cannot easily check, and tribunals accept a lawyer’s representations without verifying each one, so a crime of dishonesty, or one that abuses the legal process, shows that this reliance may be misplaced. Because the text ties the act to the lawyer’s character as a lawyer and says nothing about where the act occurred, it applies to a crime committed during a client matter or outside one.
Bribery of an official is the plain case for this chapter. Paying an official to decide a matter for the client is a crime, is dishonest by nature, and corrupts the process in which the lawyer is supposed to advocate honestly, so it meets both requirements of paragraph (b). The division of labor between (b) and (e) follows from their verbs. Paragraph (e) punishes what a lawyer states or implies about an ability to influence improperly, and that violation is complete when the words are spoken.5 Paragraph (b) punishes what the lawyer does when the doing is a crime that reflects on honesty or fitness. An actual bribe is therefore chargeable under (b), a claim that a bribe could be arranged is chargeable under (e), and a lawyer who makes the claim and then pays has committed both violations.
An exam stem that describes only a payment asks a different question from one that describes only a pitch, and the verb in the facts tells which paragraph answers it.
Extortion offers a second route to paragraph (b). In general terms, extortion means obtaining something from a person by threatening harm, such as injury to reputation, and each state defines it by statute. A lawyer negotiating a civil claim often knows that the other side’s conduct may also be a crime, so the question is when mentioning that fact is negotiation and when it is a threat. The concern resembles the one running through this chapter, pressure applied through a government process, but the charge differs. No statement about influence over an official is needed, because the threat can itself be the crime. Whether a lawyer’s threats amount to criminal extortion is a question under the state’s criminal statute, and if they do, paragraph (b) applies.6
The clearest warning is Attorney Disciplinary Board v. Stowers. There the Iowa Supreme Court found that a lawyer had engaged in extortion by sending emails that threatened to injure another person’s professional reputation unless that person made a large charitable contribution in the name of the lawyer’s wife.7 The lawyer argued that he had a right to make the threat as leverage to settle a claim. The court rejected the argument for two reasons drawn from the record: the emails never mentioned any claim, and the statute of limitations barred the claim anyway, as the lawyer knew or reasonably should have known.8 The lawyer was not pursuing a settlement, the court concluded; he “sought to vindicate a personal grudge.”9 Conduct of that kind is a crime and reflects directly on honesty and fitness, which is why paragraph (b) reaches it.
The Stowers demand had no tie to any claim, and that absence shows what a lawful overture requires. An American Bar Association ethics opinion allows a lawyer to agree to refrain from presenting criminal charges in a settlement, provided that the criminal matter is related to the client’s civil claim, the lawyer has a well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest an improper influence over the criminal process.10 The safe course depends on several facts at once, so it is best run as a checklist in which a failure at any step moves the lawyer toward extortion.
A merchant’s lawyer who learns that an employee or customer has stolen from the business, and who quietly arranges for the item to be returned or paid for with the understanding that the authorities will not be notified, passes every step. The matter is related, the recovery equals the value of the loss, the restraint is offered calmly, and no evidence is destroyed. The arrangement is a sensible alternative that involves no abuse of the criminal justice system and no harm to the public interest in obedience to the law.11 The same guidance adds a caution for the lawyer who alludes to criminal charges in an overly aggressive effort to extract an arguably excessive recovery, because that is where the conduct can become extortion.12 It also notes that when the victim has a well-founded claim that the wrong is both tortious and criminal, and the lawyer seeks no more than the amount the victim is reasonably entitled to, forthrightly raising the criminal charges and suggesting that a complaint be withheld if the matter settles would appear to be neither a crime nor a professional violation in many, but not all, states.13 Because of that state-law qualifier, an exam answer should rest on the facts of the demand and should not assume one national result.
The line follows what each demand buys. When the recovery is limited to the fair value of a related harm, the promise to hold back a report is a way of making the victim whole, and the criminal process serves its ordinary purpose. When the demand exceeds that value, or has no connection to any claim, the excess is a price for silence, and the lawyer is selling the other person’s fear of the criminal process. The condition that the lawyer not attempt to exert or suggest an improper influence over the criminal process carries the concern of paragraph (e) into the negotiating room, since a lawyer who hinted that a charge could be steered by improper means would be implying the kind of ability that paragraph (e) condemns.14 Students should avoid two opposite errors. One treats every mention of possible criminal charges in a civil negotiation as extortion, which ignores the related-claim, fair-value, and calm-restraint conditions. The other treats a threat as acceptable because some civil claim exists, which ignores that the demand in Stowers fell outside any claim the lawyer could pursue.
Dishonesty and Deceit
Paragraph (c) makes it professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”18 The four terms overlap, and together they cover untruthful conduct from an outright lie to a calculated deception. Two features of the text matter for this chapter. The paragraph does not require that the conduct be a crime, so it reaches dishonesty that violates no statute. It also is not confined to the lawyer’s work on a client’s matter, so a lie told in any setting can supply the violation.
The breadth of the rule reflects who relies on a lawyer’s word. A client usually cannot check a lawyer’s account of what the lawyer can do or has done, and an agency reviewing a filing rarely has the means to verify each assertion in it. Both accept what the lawyer says because lawyers are expected to be truthful. A lawyer who deceives either audience draws on that expectation to produce a result, and each discovered lie makes the next client, official, or tribunal less willing to take a lawyer at their word. Because the harm falls on that trust, and the trust does not depend on where the lie was told, the paragraph applies to dishonest conduct whether or not it arises in a client matter.
Paragraph (c) matters in a chapter on influence because one false boast of pull can be charged twice. To the client, a claim of a special relationship with an agency head is a misrepresentation about what the lawyer can deliver, and the client pays for it. The same words state an ability to influence an agency or official improperly, which paragraph (e) punishes when the words are spoken.19 A single episode therefore supplies the elements of two separate paragraphs, and a disciplinary charge can rest on both.
The two paragraphs overlap without merging, and each can apply alone. A boast of influence that happens to be true is not dishonest, so paragraph (c) has nothing to hold, yet paragraph (e) still reaches it, because that paragraph asks what the lawyer stated or implied and leaves out whether the lawyer could deliver.20 A lie that makes no claim of influence runs the other direction.
An exam stem should be sorted by what each statement does. A false statement, whether to a client or to an official, points to paragraph (c). A statement that claims an ability to move an official or an agency by improper means points to paragraph (e). A false claim of influence over an official does both, and the strongest answer names both paragraphs.
Prejudice to Justice
Paragraph (d) makes it professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”23 The text names no particular act. It does not require a crime, as paragraph (b) does, or a lie, as paragraph (c) does, and it does not ask whether the lawyer said anything about an ability to influence an official, as paragraph (e) does. The question it poses is what the conduct does to the system that resolves disputes and makes official decisions. That focus makes (d) the broadest of the paragraphs that bear on influence scenarios.
The breadth is deliberate. A specific rule describes a form of interference that its drafters have already seen: Rule 3.5 describes private contact with a decision maker, paragraph (e) describes the claim of influence, and paragraph (c) describes deceit. A fair process can be defeated in more ways than any list foresees, and a lawyer who found a method that fit no listed description would escape discipline if specific rules were the only ones. A general paragraph removes the reward for searching out such gaps, because conduct that falls outside every narrower rule can still be judged by whether it damages the fairness of the process.
Professional Air Traffic Controllers Organization v. FLRA, the litigation over the air traffic controllers’ union, shows what is at risk, though with a caution about its reach. The case did not apply Rule 8.4(d), and no lawyer was disciplined under it; the court was addressing a private approach to an adjudicator in a pending matter. Its reasoning nonetheless names the harm that the paragraph exists to prevent. The court said there would be no way to protect the sanctity of adjudicatory processes if direct attempts to influence decision makers through ex parte contacts were condoned, and it called it simply unacceptable for any person — the general public, interested persons, or the formal parties — directly to attempt to influence the decision of a judicial officer in a pending case outside the formal, public proceedings.24 The mechanism is easy to trace. An adjudication earns acceptance because every party sees the same record and answers the same arguments, while a private approach lets one side add pressure that the others cannot see or answer, so the result no longer rests on what the process disclosed. Once that is tolerated, every party has a reason to seek private access, and the process rewards whoever gets access instead of whoever has the better case. Damage to the integrity of decision making of that kind is what it means for conduct to be prejudicial to the administration of justice.
The court’s own application shows which fact carries the analysis. It held that Member Applewhaite committed no impropriety in accepting a dinner invitation from Mr. Shanker, because the two were professional and social friends.25 The friendship and the meal were harmless. The harm arose when the pending case became the subject of conversation outside the formal, public proceedings. The line that paragraph (d) draws is the same one, and it follows the channel through which the pressure reaches the decision maker. It does not follow the content of the argument or the social ties between the people involved.
When an exam stem describes a lawyer pressing a decision maker on a pending matter, the question is which paragraph supplies the charge, and the answer is often more than one.
The two lawyers want the board to hear exactly the same thing, and what separates them is whether the argument entered the record where the other side could answer it. Paragraph (d) therefore tracks the fairness of the process and leaves the lawyer’s zeal alone. The first lawyer’s calls would also raise the ex parte rule in Rule 3.5, and if the lawyer had assured the client beforehand that the board members could be reached at home, paragraph (e) would apply as well, because it punishes the claim of improper influence when the words are spoken.26 Each charge rests on its own elements, and a charge under (d) commonly accompanies a charge under Rule 3.5 or paragraph (e) because one episode can satisfy all of them. An answer that names only the specific rule overlooks a paragraph that applies on the same facts, and an answer that names only (d) overlooks the more precise charge.
Because (d) is so broad, an exam answer should use it in two ways. It supplements the narrower rule when the conduct also damages the process, and it carries the analysis alone when no narrower rule fits the interference described. Its breadth does not make forceful advocacy suspect, since an argument made openly on the record leaves the process intact and gives the paragraph nothing to hold.
Assisting Judicial Misconduct
Paragraph (f) makes it professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”29 The text has two working parts: the lawyer must assist, and the lawyer must do so knowingly. What the lawyer assists is the judge’s own conduct, and that conduct must violate the rules of judicial conduct, a body written for judges and separate from the Rules of Professional Conduct, or some other law. Paragraph (f) thus disciplines the lawyer while borrowing its yardstick from rules addressed to the judge, so analysis under it asks first what the judge was forbidden to do and then whether the lawyer knowingly helped the judge do it.
The paragraph exists because the judge’s own rules cannot carry the whole burden of keeping judges free from outside pressure. Rule 2.4(b) of the Model Code of Judicial Conduct forbids a judge to “permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.”30 A rule of that kind is hard to enforce: outside influences can work on a judge subconsciously, judges know such influences are improper and so rarely concede them, and without a concession there may be suspicion but no proof.31 The difficulty grows because improper influence on a judge often takes two people, one bound by the judicial rules and one who supplies the gift, the favor, or the private conversation. A lawyer regularly appears before judges for clients whose cases those judges decide. If the lawyer faced no discipline for helping a judge break the judicial rules, that help could be offered to clients as a service. Paragraph (f) removes that safe position by making the lawyer answerable for the assistance.
The air traffic controllers’ litigation shows how an outsider’s private advocacy tests the person approached. Albert Shanker, a union president, invited Member Applewhaite to dinner. The two were professional and social friends, and the court held that accepting the invitation was no impropriety. But as the conversation turned to the discipline appropriate for a striking union like PATCO, the court said, Member Applewhaite should have promptly terminated the discussion.32 The decision applied no rule of lawyer conduct and disciplined no one as a lawyer, so it serves here as an illustration of the mechanism: the visitor supplied the occasion, and the decision maker’s continued listening completed the failure. A lawyer who knowingly arranged such an approach to a judge, and kept pressing after the judge failed to stop it, would be helping the judge fail at exactly that duty.
The word knowingly carries the line between those two lawyers. The lawyer must know that the help given assists conduct that violates the judge’s rules or other law, so a lawyer who unwittingly takes part in something that later proves to be a violation falls outside the paragraph. The reason is practical: judicial conduct rules are detailed and are written for judges, and a lawyer who hosts an event or makes an introduction in good faith should not face discipline because the judge turned out to have a conflict the lawyer never knew about. The same word gives no refuge to a lawyer who arranges a private conversation or an expensive gift for a judge presiding over a pending case, because the pending case and the lawyer’s own purpose make the character of the help plain. A stem that gives the lawyer a stake in the case, a gift of real value, or a private audience with the judge points toward knowledge; a stem that describes a public event, no tie to a pending matter, and no hint of any rule points away from it.
Paragraph (f) concerns the lawyer’s help, so it sits beside the other paragraphs of Rule 8.4 and does not replace them. A lawyer who tells a client that a trip for the judge will win the case states or implies an ability to influence a judicial officer improperly, which paragraph (e) punishes when the words are spoken.33 The lawyer who then arranges the trip has assisted the judge in conduct that the judicial rules forbid, which paragraph (f) reaches, and a payment amounting to a bribe would add the criminal-acts paragraph taught above. The text of (f) speaks of assisting conduct that is a violation, so a judge who declines the offer and ends the contact, as the PATCO court said Member Applewhaite should have done, has violated nothing for the lawyer to have assisted. The lawyer’s pitch to the client may still fall under paragraph (e), and a refused offer may raise the attempt language taken up in the next subsection.
Acting Through Others
Paragraph (a) makes it 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.”35 The text names three routes to a violation. The first covers the lawyer’s own violation and the lawyer’s unsuccessful attempt at one. The second covers a lawyer who knowingly helps or persuades someone else to violate the Rules. The third covers a lawyer who accomplishes the violation with another person’s hands. Paragraph (e) has a subject matter of its own, representations about influence; paragraph (a) has none. It attaches to some other rule and widens who answers for a breach of that rule and how far the breach reaches.
A rule that bound only the person who personally spoke or paid would accomplish little against improper influence on officials. A lawyer who wants the forbidden result seldom needs to deliver it in person, because a consultant, lobbyist, investigator, or friend can carry the message or the benefit. Many of those people are not lawyers and cannot be disciplined as lawyers, so the one person bound by the Rules would be the one who never touched the last step. Paragraph (a) closes that opening by tying the lawyer to the whole scheme, and each of its clauses fills a different gap. The attempt clause reaches a plan that fails, such as an intermediary who never delivers or an official who refuses, because the lawyer’s wrong lies in setting out to violate the Rules. The assist-or-induce clause reaches the lawyer who stands behind another person’s violation by helping with it or persuading the person to commit it, and its text attaches knowledge to that conduct, so the lawyer must know what the help is for. The acts-of-another clause treats the intermediary’s conduct as the lawyer’s own when the lawyer has used that person as the means.
The consultant’s status explains why the paragraph is needed. A nonlawyer consultant faces no professional discipline for the approach, and a lawyer who could shelter behind that fact would have found a way to buy forbidden access while keeping a clean record. The same attribution works for the claim of influence that paragraph (e) punishes.
Paragraph (e) punishes the claim when it is made, and paragraph (a) carries the friend’s words back to the lawyer who arranged for them to be spoken.36
An exam stem that mentions a consultant or a lobbyist raises the question of what that person was sent to do. Using an intermediary is an ordinary part of practice, and paragraph (a) attributes only what would be a violation if the lawyer had done it personally. A task the Rules permit cannot become a violation merely because someone else performs it.
The two scenes use the same intermediary and the same agency, and they differ in what the intermediary carried. The first carried a private offer to a decision maker, and the second carried an accurate argument into the public record. Two errors follow from overlooking that difference. The first treats any use of a lobbyist or consultant as misconduct, which overlooks that paragraph (a) has no content apart from the underlying rule. The second treats an intermediary as a shield, which overlooks that the paragraph exists to remove that shield.
The sixth step adds to the other five and never replaces them. A lawyer who sends a consultant with an offer to an agency member is charged under paragraph (a) and also under the paragraph and rule that the offer itself violates, and each charge rests on its own elements. A correct exam answer names every paragraph the facts support.