Professional Misconduct Overview

Lawyer Complicity in Judicial Misconduct

Professional Misconduct Overview

Rule 8.4 of the Model Rules of Professional Conduct is built on one sentence stem — “It is professional misconduct for a lawyer to:” — which each lettered paragraph completes.¹ Each paragraph therefore names a wrong of its own. The closing “; or” on the paragraph studied here marks the items as alternatives rather than parts of a single test.

The paragraph this chapter examines, Rule 8.4(f), completes the stem with this language: “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”² It has four working parts:

• The act: assisting.
• The mental state: knowingly.
• The person assisted: a judge or judicial officer.
• The wrong assisted: conduct that violates applicable rules of judicial conduct or other law.

The text asks for nothing more. It names no client, representation, or pending case among its requirements.

Paragraph (f) does not define the judge’s wrong for itself. It borrows the definition from outside, by requiring that the assisted conduct violate “applicable rules of judicial conduct or other law.”³ Two bodies of law therefore apply to one episode. The rules of judicial conduct, or other law, supply the judge’s wrong, and Rule 8.4 supplies the lawyer’s. Because “or other law” stands beside the judicial rules, a judge’s act can also satisfy the predicate by breaking a law that is not part of any judicial code. The word “applicable” directs the inquiry to the rules and law that actually govern the judge in question.

Language that the Maryland disciplinary court quoted in Attorney Grievance Commission of Maryland v. Sheinbein helps explain why the Rules reach a lawyer’s dealings with judges. The court quoted the preamble’s description of a lawyer as “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”⁴ The quoted passage adds that a lawyer’s conduct “should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs,” and that a lawyer “should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.”⁵ Those sentences are phrased as expectations, not prohibitions, and the quotation alone does not show how the court applied them. They do supply the idea behind paragraph (f): a lawyer owes duties to the legal system itself, and a lawyer who knowingly helps a judge break the rules fails the respect for “those who serve it” that the preamble describes.

Two features of the rule’s text carry the rest of the chapter: the mental state, “knowingly,” and the borrowed standard, “applicable rules of judicial conduct or other law.”