As members of the legal profession and officers of the court, attorneys owe a duty of candor to the courts as well as to their clients. Attorneys’ ethical conduct is most closely scrutinized in the context of the legal services they provide to clients and their conduct in the courtroom. But state bars have long recognized that attorneys are subject to greater scrutiny, even for conduct in their private lives, due to their unique professional role.

Indeed, both the California and ABA Model Rules of Professional Conduct recognize that an attorney is a “public citizen having special responsibility for the quality of justice.” For this reason, the bar or even members of the public can pursue grievances against attorneys based on their conduct and statements outside of a courtroom or unrelated to an existing or prospective client relationship.

Thus, there can still be ethical risks for attorneys engaging in criminal or unethical conduct in their private lives. This article provides some guidance for attorneys about what ethical obligations they may have in their private lives and to what extent attorneys could face discipline for conduct unrelated to their professional practice.

Criminal Misconduct

Most jurisdictions have rules that subject attorneys to professional discipline if they commit certain crimes in their private lives. Under Rule 8.4(b) of the California Rules of Professional Conduct, professional misconduct includes

the commission of “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Comment [1] makes clear that “[a] violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.” Comment [3] recognizes that attorneys engage in professional misconduct if they commit criminal acts that constitute “other conduct warranting discipline” or violate the California Business and Professions Code. In turn, Section 6101(a) of the Code provides that an attorney may be disbarred or suspended if he or she is convicted of a “felony or misdemeanor” that involves “moral turpitude.”

Thus, attorneys can potentially face professional discipline if they engage in illegal conduct that only involves their personal and private lives.

For example, a California attorney was recently suspended for various misdemeanor convictions involving conduct over the course of a year, including domestic battery, DUI, drug possession, and a hit-and-run accident. In levying punishment, the California Supreme Court found that the attorney “repeatedly placed the public at risk of harm” and concluded it “must take into consideration current societal morals regarding the seriousness of domestic violence.”

Other Personal Misconduct

Attorneys can also face professional discipline for misconduct in their personal lives, even if it does not constitute a crime.

Rule 8.4(c) of the California Rules of Professional Conduct prohibits attorneys from “engag[ing] in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.” Comment [4] also provides that

“[a] lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.” And Section 6106 of the Code makes clear that the prohibited act need not be “committed in the course of his relations as an attorney” or constitute a crime to warrant professional discipline.

Attorneys have often faced scrutiny for things they have said to others in their private lives. For example, a South Carolina attorney was suspended for six months for making several statements on social media, including derogatory statements about women with tattoos and incendiary statements after the murder of George Floyd. The South Carolina Supreme Court concluded the statements were meant to incite racial and gender-based conflict, which were “exacerbated” by the attorney’s professional status.

Similarly, a Tennessee attorney was suspended for comments to a friend on Facebook in which the attorney told his friend that if she wanted to kill her ex-boyfriend, then she should lure him to her home and claim that she feared for her life after he broke in. The attorney also told her to delete the comments and not say anything because being in fear for her life would be her best defense against criminal prosecution. The Tennessee Supreme Court suspended the attorney’s license for four years—a significant increase from the 60-day suspension recommended by the bar. In the opinion, the court explained that the harsher sanction was warranted because the Facebook comments fostered the misconception that an attorney’s role is to manufacture false defenses and corrupt the judicial process. The court also recognized that statements made on social media require professional care and judgment because such statements can be widely disseminated.

Mitigating Circumstances

Although bars take alleged misconduct by lawyers seriously, problems in an attorney’s personal life can be a mitigating factor. These considerations can include emotional stress, health issues, or family strife. Courts have also considered the isolated nature of the misconduct and the attorney’s prior “good” deeds. Mitigating circumstances may help lessen the severity of the professional sanction, but also underscore the importance of supporting mental health in the professional community.

Misconduct Before Becoming a Member of the Bar

Conduct committed before someone is admitted to the bar may also create professional risks. To be admitted to the bar, candidates generally must show they possess the character and fitness requisite to be members. Some candidates have difficulty making that showing based on past conduct that suggests a lack of good judgment or honesty.

Such risks are evident from the high-profile case years ago involving a notorious news reporter with a reputation for fabricating stories. After graduating from law school and passing the bar exam in California and New York, the former reporter was denied admission to the bar in both states. Although the reporter argued that he had reformed and demonstrated more than a decade of good behavior after his publishing scandal, the California Supreme Court refused to let him practice law, finding that his misconduct bore directly on his character in matters that were critical to the practice of law.