In 1970, the American Bar Association promulgated a Model Code of Professional Responsibility. This Model Code became positive law in a jurisdiction when its highest court adopted it as a court rule. Over the years, most states adopted the Model Code, illustrating the ABA’s influence. Disciplinary Rule 1-102 defined what constituted “misconduct” under these rules. DR 1-101(A)(3) announced that it was misconduct (which could lead to disbarment) if the lawyer engaged “in illegal conduct involving moral turpitude.” A comment to this section called (in the parlance of the Model Code) an “Ethical Consideration,” explained that a lawyer “should refrain from all illegal and morally reprehensible conduct.”
These statements all sound fine, but they are not helpful in explaining to lawyers (and to the disciplinary authorities who enforce these rules) what is meant by “moral turpitude” and “morally reprehensible conduct.” The ABA was sensitive to this criticism] and took it into account in drafting a new “Model Rules of Professional Conduct.”
In 1983 the ABA approved these new Model Rules and again urged state courts to adopt them. The ABA has been very successful in persuading the state courts; the only significant holdout is California. That state uses a different format and often applies different substantive rules, even though California state courts frequently cite the ABA Model Rules in their opinions on the responsibilities of lawyers.
The 1983 Model Code (periodically amended by the ABA House of Delegates over the last 32 years) rejected the prohibition against “illegal conduct involving moral turpitude.” The ABA’s reason, which it included in a Comment to its Rule 8.4, was quite simple: “Moral turpitude,” the ABA advised, is a “concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. 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.” The American Law Institute’s Restatement of the Law Governing Lawyers § 5 (Third) (ALI 2000), agreed. It also concluded that “moral turpitude” is vague and may lead to discriminatory or otherwise inappropriate applications.”
That makes sense. For example, a lawyer may have a financial interest in a grocery store that repeatedly is open on Sunday, in criminal violation of a local, generally unenforced, “blue law.” That lawyer is guilty of a crime, and if the police issue a ticket to her, the lawyer is subject to the penalty (perhaps a fine). Yet, what the lawyer did is open and notorious. The law may call it a crime, but it has no functional relationship to the practice of law. As Comment 2 to Model Rule 8.4 explains, “Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.”
The uncertainness and ambiguity of the “moral turpitude” standard invites a court to discipline lawyers for acts that may be crimes in some states, although the crime is not connected or even relevant to the attorney–client relationship. A typical example of the old rule came up in Grievance Committee of Hartford County Bar v. Broder, 112 Conn. 263, 152 A. 292 (1930), in which the Supreme Court of Connecticut held that a lawyer’s extramarital relations with a consenting person who was not a client subjects the lawyer to discipline. The court disbarred the lawyer in that case. If the lawyer’s conduct “shows that he is unfit to discharge the duties of his office, is unworthy of confidence even though the conduct is outside of his professional dealings, it is sufficient. If he is not honest; if he is not moral; if he is not of good demeanor, he may be disbarred, and should be.”
The Model Rules changed all that, or at least tried to. Comment 2 to Rule 8.4 makes clear, “Discipline is inappropriate for violations of ‘personal morality’ such as adultery.” However, not all courts got that memo. A few jurisdictions still discipline attorneys for “moral turpitude.” In fact, some courts discipline and find “moral turpitude” even despite having adopted the language of the ABA’s Model Rules.
Disciplinary resources are, of course, finite, and whenever the disciplinary authorities spend time and effort punishing personal morality, that is time and effort that they are not spending on other offenses, such as lawyers stealing from client trust funds—a much graver offense having a functional relationship to the dutes of a lawyer Another problem is that “moral turpitude” is hardly self-defining. What constitutes “moral turpitude” is in the eyes of the beholder.
The District of Columbia is one jurisdiction that disbars lawyers for crimes involving moral turpitude, even though Rule 8.4(b) of the D.C. Rules of Professional Conduct follows the ABA Model Rule and rejects moral turpitude as a disciplinary standard. Moreover, Comment 1 to D.C. Rule 8.4 parrots the ABA and provides that there is no discipline for crimes of moral turpitude. However, D.C. Code § 11–2503(a) provides that D.C. Court of Appeals “must disbar an attorney who has committed a crime of moral turpitude.” In re O’Hara, 101 A.3d 433, 434 (D.C. 2014) (emphasis added).
The Professional Responsibility Blog has collected a few of these idiosyncratic cases of moral turpitude, and it is hard to find rhyme or reason in the D.C. case law. There is no moral turpitude for a lawyer who murders his wife or steals property from a store for personal gain, but there is moral turpitude for witness tampering.
In re Grant, 317 P.3d 612 (Cal. 2014), is one of many instances where courts in various jurisdictions discipline a lawyer for possession of child pornography, citing moral turpitude. In In re Grant, the Supreme Court of California court disbarred a lawyer who pled guilty to a felony count of possession of child pornography. On the other hand, California also held, in In re Sergio C. Garcia, 315 P.3d 117 (Cal. 2014), that an otherwise-qualified undocumented immigrant who is present in the United States without lawful authorization, may be admitted to the California bar. According to that court, an undocumented immigrant’s continued presence in the United States does not itself involve “moral turpitude.”
Florida has disciplined many lawyers for sexual misconduct that did not involve any clients. Florida, like the District of Columbia, has adopted Model Rule 8.4, in its F.S.A. Bar Rule 4-8.4. Florida also adopted the ABA Comment that rejects moral turpitude as a disciplinary standard. Nonetheless, Florida often refers to moral turpitude in the course of imposing legal discipline.
For example, The Florida Bar v. Hefty, 13 So. 2d 422, 424-25 (Fla. 1968), disbarred a lawyer who had sexual relations with his stepdaughter. The dissent in that case objected because the lawyer had “not been convicted of any criminal charge involving such conduct”; the conduct occurred “in the private area of his life” and had no “direct relation to his professional status as an attorney to warrant intervention of the Bar.”
In another case, the Florida Supreme Court imposed a two-year suspension (along with counseling and mandatory abstention from alcohol or controlled substances) on a lawyer who had not engaged in any sex but who had been making obscene phone calls. The lawyer admitted that he had been making obscene phone calls since he was age eleven. The Florida Bar v. Helinger, 620 So. 2d 993, 994 (Fla. 1993). He was not calling clients.
In yet another case, the Florida Supreme Court suspended a lawyer for a year because he had sex with a client. However in that case, the client initiated the idea of offering sex in payment of her fee. The city charged the client with a misdemeanor violation of a municipal ordinance regulating exotic dancers. The lawyer’s normal fee was between $500 and $1500. The client, Rodehaver, had little or no money, and she suggested that the lawyer represent her in exchange for sexual relations. The lawyer agreed. The court said that the “municipal ordinance case was concluded to Rodehaver’s satisfaction.” The Florida Bar v. Bryant, 813 So. 2d 38, 41 (Fla. 2002).
The lesson in the case law is that the label of the wine may change while the contents remain the same. The law may reject “moral turpitude” as a standard too vague to apply, yet some courts continue to apply it, even though those courts have adopted new rules that reject “moral turpitude” as the standard. Go figure.