[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Rules 8.4(b) and 1.2(d) become relevant. Model Rule 8.4(b) regulates lawyers who commit
crimes. When a client engages in or plans conduct that constitutes a crime, Model Rule
1.2(d) becomes relevant.
Lawyer Crimes
Belge’s conduct implies recognition of a significant legal limit on his own action created by
New York’s hindering prosecution statute. Belge observed, but did not alter, conceal, or
destroy the physical evidence of his client’s crime. Note that the court says its work would
be much more difficult if the grand jury had indicted Belge under this statute for
“obstruction of justice,” presumably because in that case, his conduct would have moved
beyond merely protecting confidentiality to an active felony cover-up of a client crime.
If Belge had violated the hindering prosecution statute, he also would have been subject
to professional discipline for violation of Model Rule 8.4(b), which prohibits lawyers from
committing crimes “that reflect adversely on the lawyer’s honesty, trustworthiness, or
fitness as a lawyer in other respects.” 3 Several aspects of this rule have been extensively
litigated.
First, it has been argued that lawyers who commit crimes do not respect the law and
therefore should not be allowed to continue to practice. However, not all crimes fall within
the prohibition of this rule. Consider, for example, whether Belge should have been
disciplined for failing to provide decent burial of the dead. If every misdemeanor (including
traffic offenses) qualified, most of us would be in trouble. On the other hand, professional
rules and courts hold that most serious crimes (often defined to include most felonies) do
reflect on the lawyer’s ability to practice law.
Second, some criminal conduct is so serious and so related to character traits necessary
to practice law that courts discipline lawyers involved regardless of whether the conduct
constitutes a misdemeanor or felony. 4 Crimes involving dishonesty or lack of
trustworthiness, such as fraud and theft, clearly fit this category. 5 The same is true of
offenses that involve violence, or serious interference with the administration of justice,
such as obstruction of justice or bribery. 6 Courts also agree that domestic violence
constitutes a ground for professional discipline, not only because of the violent acts
involved, but also because the lawyer cannot be trusted with vulnerable or defenseless
persons. 7 For similar reasons, courts find sexual misconduct that exploits another indicative
of a lack of trustworthiness. 8 On the other hand, Model Rule 8.4, Comment [2] excludes
“some matters of personal morality, such as adultery and comparable offenses” that also
may be criminal but do not necessarily indicate that the lawyer is incompetent, dishonest,
or untrustworthy. 9
Second, so long as the evidence in a disciplinary proceeding shows that the lawyer
committed the requisite criminal act, professional discipline can occur whether or not that
lawyer was convicted or even charged with a crime. 10 Professional discipline has even
occurred in cases where a jury has acquitted the lawyer, 11 and where the lawyer was later
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