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Legal ethics: The intersection with our daily lives

Editor’s Note: Today marks the debut of a new monthly column: Craig Brodsky on Legal Ethics. Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. His practice focuses on the defense of professionals. For over 25 years, Brodsky has represented attorneys in disciplinary cases, legal malpractice cases, and served as ethics counsel to numerous clients. His column will appear on the first Thursday of every month. He can be reached at [email protected]

Cabaret and Cabernet, the Bar Association of Baltimore City’s annual fundraiser for senior legal services, is a worthy event. The theme was Baltimore, and the main event was a musical performance by lawyers singing tunes ranging from The Star-Spangled Banner to a Don Giovanni aria. I went, not because show tunes are my thing, but because a young, talented associate at our firm was performing. I had rightly been convinced I should go and support him. I am glad that I did.

The performers impressed all the attendees. They were talented and well-rounded. And then I thought of this column, and how nights like these are what we lawyers should strive for. We should be well-rounded, we should care about our community, and we should work to better it.

Most lawyers don’t immediately think of ethics at an event like Cabaret and Cabernet. To me, however, it was another reminder of the intersection between a lawyer’s personal and professional life. I was reminded again how ethics rules govern lawyers’ professional and personal lives. Put another way, the Maryland Attorney Rules of Professional Conduct define us both as lawyers and as people. I attribute this to our status as a self-regulated profession. The privilege of self-regulation comes with the simultaneous obligation to govern ourselves accordingly. Lawyers, as representatives of the justice system and the courts, cannot engage in conduct that is prejudicial to the administration of justice. See Md. Rule 19-308.4(d).

The Maryland Court of Appeals takes an expansive view of conduct that is prejudicial to the administration of justice. In Atty. Griev. Comm’n of Md. v. White, 479 Md. 83 (2022), the court reiterated that conduct which reflects negatively on the legal profession, impairs public confidence in the legal system, or engenders disrespect for the Maryland courts subjects a lawyer to discipline.

The core concepts of Rule 19-308.4(d) apply to all aspects of a lawyer’s life, not just in the courthouse.

Importantly, Rule 8.4(d)’s concepts are not constrained to obvious ethics violations like conflicts of interest, misappropriation of client funds, or failing to competently represent clients. Rather, time and again, the Court of Appeals has concluded misconduct in an attorney’s personal life violates Rule 8.4(d).

Among other transgressions, being dishonest, driving under the influence, possession of controlled substances, failing to file taxes, egregiously using profanity, violating protective orders, failing to pay child support, sexual harassment, and treating court staff poorly have led to discipline under Rule 8.4(d).

As reflected in Atty. Griev. Comm’n of Md. v. Dailey, 474 Md. 679 (2021), lawyers who act poorly reflect negatively on the legal profession and set a poor example for the public at large violate Rule 8.4(d).

On the other side of the coin, a lawyer’s personal conduct and community activities are also relevant to disciplinary proceedings. Lawyers facing ethics charges need to present mitigating evidence. Mitigation evidence places a critical role in a disciplinary proceeding.

Among the specifically enumerated factors the Court of Appeals evaluates is a lawyer’s character and reputation. We tell the court about a lawyer’s pro bono work, participation in community activities, work with nonprofits, and assistance to religious organizations because the Court of Appeals considering all this evidence when determining the appropriate sanction in a disciplinary matter.

Make no mistake, this evidence matters, a lot. Every Court of Appeals decision addresses the lawyer’s mitigation evidence.

At this point, you may find yourself thinking, “this is obvious” or “this is nothing new.” To some extent, I hope that is what you are thinking. What I really hope you are thinking is: “This is common sense.”

I believe in a common-sense approach to legal ethics. Approach ethics issues the way you approach any other important decision. Identify the issues, gather the facts, and let your common sense guide you. No need for fear. Embrace the rules. Awareness will make you a better lawyer and a better person.

To this end, in the coming months, I hope to bring awareness to legal ethics issues. Sometimes, I will address items from the evening news. Other times, I may discuss a recent Court of Appeals opinion or share strategies and arguments prevalent in disciplinary cases. Most importantly, I hope you find the issues we discuss as both interesting and valuable.