Recently South Carolina’s Office of Disciplinary Counsel (ODC) has taken action against attorneys for their activities outside the context of actual cases if these acts are “conduct that is prejudicial to the administration of justice.” Specifically, they are trying to discipline an attorney for vile blogging.
Also recently, a New York Times article discussing United States Supreme Court Justice Sonia Sotomayor’s recent autobiography notes:
In her book, she confesses that she does not always observe the letter of the law. “I’m a New Yorker,” she wrote, “and I jaywalk with the best of them.”
I have yet to encounter an attorney who always drives at or under the speed limit–myself included. Sotomayor is not the only attorney to habitually jaywalk. Practically every lawyer I know habitually violates laws they consider stupid or overbroad.
I note that Canon 2(a) of Code of Conduct for United States Judges (which is the code of conduct Justice Sotomayor must follow) reads “A judge should respect and comply with the law.” The comment to this rule further reads:
An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Some lawyers I know smoke marijuana. Others prefer to be paid in cash. I suspect there is a line between laws so inconsequential or picayune that their habitual violation isn’t “conduct that is prejudicial to the administration of justice” and laws whose violation does meet that standard. I might argue that driving 80 mph in a 70 zone or jaywalking is not such conduct; I wouldn’t consider claiming that murder isn’t. Where marijuana smoking or failing to report income to the IRS fall on that continuum isn’t an opinion I intend to render.
But, frankly, it’s not any attorney’s right to decide for him or herself which laws they can violate without engaging in “conduct that is prejudicial to the administration of justice.” Either Rule 8.4(e) of the South Carolina Rules of Professional Conduct, that makes such conduct a violation of the rules of professional conduct, is overbroad or any violation of criminal law is a violation of that rule of conduct.
If a United States Supreme Court Justice can habitually jaywalk and publicly flaunt this misbehavior without sanction, what violations of criminal law can I and my fellow attorneys get away with before we are held to have violated Rule 8.4(e)?