North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0800 - MAINTAINING THE INTEGRITY OF THE PROFESSION › Section 02 RULE 8.04 - MISCONDUCT

Current through Register Vol. 39, No. 2, July 15, 2024
It is professional misconduct for a lawyer to:
(a) 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;
(b)
				commit a criminal act that reflects adversely on the lawyer's honesty,
				trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty,
				fraud, deceit or misrepresentation that reflects adversely on the lawyer's
				fitness as a lawyer;
(d) engage in
				conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence
				improperly a government agency or official;
(f) knowingly assist a judge or judicial
				officer in conduct that is a violation of applicable rules of judicial conduct
				or other law; or
(g) intentionally
				prejudice or damage his or her client during the course of the professional
				relationship, except as may be required by Rule 3.3.
Comment
[1] Lawyers
				are subject to discipline when they 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, as when they request or instruct an agent to do so
				on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from
				advising a client or, in the case of a government lawyer, investigatory
				personnel, of action the client, or such investigatory personnel, is lawfully
				entitled to take.
[2] Many kinds of
				illegal conduct reflect adversely on a lawyer's fitness to practice law, such
				as offenses involving fraud and the offense of willful failure to file an
				income tax return. However, some kinds of offenses carry no such implication.
				Although a lawyer is personally answerable to the entire criminal law, a lawyer
				should be professionally answerable only for offenses that indicate lack of
				those characteristics relevant to law practice. Offenses involving violence,
				dishonesty, breach of trust, or serious interference with the administration of
				justice are in that category. A pattern of repeated offenses, even ones of
				minor significance when considered separately, can indicate indifference to
				legal obligation. A lawyer's dishonesty, fraud, deceit, or misrepresentation is
				not mitigated by virtue of the fact that the victim may be the lawyer's partner
				or law firm. A lawyer who steals funds, for instance, is guilty of the most
				serious disciplinary violation regardless of whether the victim is the lawyer's
				employer, partner,
law firm, client, or a third party.
[3] The purpose of professional discipline
				for misconduct is not punishment, but to protect the public, the courts, and
				the legal profession. Lawyer discipline affects only the lawyer's license to
				practice law. It does not result in incarceration. For this reason, to
				establish a violation of paragraph (b), the burden of proof is the same as for
				any other violation of the Rules of Professional Conduct: it must be shown by
				clear, cogent, and convincing evidence that the lawyer committed a criminal act
				that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as
				a lawyer. Conviction of a crime is conclusive evidence that the lawyer
				committed a criminal act although, to establish a violation of paragraph (b),
				it must be shown that the criminal act reflects adversely on the lawyer's
				honesty, trustworthiness, or fitness as a lawyer. If it is established by
				clear, cogent, and convincing evidence that a lawyer committed a criminal act
				that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as
				a lawyer, the lawyer may be disciplined for a violation of paragraph (b)
				although the lawyer is never prosecuted or is
acquitted or pardoned for the underlying criminal act.
[4] A showing of actual prejudice
				to the administration of justice is not required to establish a violation of
				paragraph (d). Rather, it must only be shown that the act had a reasonable
				likelihood of prejudicing the administration of justice. For example, in State
				Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827 (1981), modified on other
				grounds, 304 N.C. 627, 286 S.E.2d 89 (1982), the defendant was disciplined for
				advising a witness to give false testimony in a deposition even though the
				witness corrected his statement prior to trial. Conduct warranting the
				imposition of professional discipline under paragraph (d) is characterized by
				the element of intent or some other aggravating circumstance. The phrase
				"conduct prejudicial to the administration of justice" in paragraph (d) should
				be read broadly to proscribe a wide variety of conduct, including conduct that
				occurs outside the scope of judicial proceedings. In State Bar v. Jerry Wilson,
				82 DHC 1, for example, a lawyer was disciplined for conduct prejudicial to the
				administration of justice after forging another individual's name to a
				guarantee agreement, inducing his wife to notarize the forged agreement, and
				using the agreement to obtain funds.
[5] Threats, bullying, harassment, and other
				conduct serving no substantial purpose other than to intimidate, humiliate, or
				embarrass anyone associated with the judicial process including judges,
				opposing counsel, litigants, witnesses, or court personnel violate the
				prohibition on conduct prejudicial to the administration of justice. When
				directed to opposing counsel, such conduct tends to impede opposing counsel's
				ability to represent his or her client effectively. Comments "by one lawyer
				tending to disparage the personality or performance of another...tend to reduce
				public trust and confidence in our courts and, in more extreme cases, directly
				interfere with the truth-finding function by distracting judges and juries from
				the serious business at hand." State v. Rivera, 350 N.C. 285, 291, 514 S.E.2d
				720, 723 (1999). See Rule 3.5, cmt. [10] and Rule 4.4, cmt. [2].
[6] A lawyer may refuse to comply with an
				obligation imposed by law upon a good faith belief that no valid obligation
				exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the
				validity, scope, meaning or application of the law apply to challenges of legal
				regulation of the practice of law.
[7] Lawyers holding public office assume
				legal responsibilities going beyond those of other citizens. A lawyer's abuse
				of public office can suggest an inability to fulfill the professional role of
				lawyers. The same is true of abuse of positions of private trust such as
				trustee, executor, administrator, guardian, agent and officer, director or
				manager of a corporation or other organization.