LEO: Misconduct: Attorney Convicted LE Op. 1185
Misconduct: Attorney Convicted of Trespassing and Disturbing the
Peace for Participation in Protest.
February 22, 1989
You have inquired about a situation in which an attorney willfully
participates in a protest against the abortion of unborn children at a
hospital, clinic, or other building at which abortions are performed. In
the course of participating in the protest, the attorney willfully assists
in blocking access into the building by persons seeking abortions and is
subsequently convicted of charges of trespassing and disturbing the peace
or is convicted of some other misdemeanor based on the set of facts.
You wish to know whether such conduct or conviction is a violation of
DR:1-102 or § 54-74, replaced by § 54.1-3935, of the Code of Virginia;
or, does such conduct or conviction constitute "misconduct" as that term
is defined in Paragraph 13 of Part Six, § Four of the Rules of Court,
where the attorney's conduct is based on his belief that abortion is
tantamount to murder.
For the purposes of this opinion, the Committee will assume that the
lawyer is acting outside the scope of his or her professional capacity,
and that he or she has not taken representation of any member of the
The Committee believes the appropriate and controlling rule relative to
your inquiry is DR:1-102(A)(3), which provides that a lawyer shall not
commit a crime or other deliberate wrongful act that reflects adversely on
the lawyer's fitness to practice law.
"Misconduct" is defined by the Virginia Code of Professional
Responsibility as any malpractice or any unlawful or dishonest or unworthy
or corrupt or unprofessional conduct as defined in § 54.1-3935(A),
formerly § 54-74(6), of the Virginia Code and any violation of the Code of
Professional Responsibility. Misconduct may also mean conviction of a
criminal offense, other than specific crimes, which reflects upon the
fitness of an attorney to practice law. The specific crimes enumerated in
Paragraph 13 of the Rules of Court include: (a) any offense declared to be
a felony by federal or state law; (b) any other offense, whether federal
or state, involving theft, fraud, forgery, extortion, bribery or perjury;
or (c) an attempted solicitation or conspiracy to commit any of the
Under the facts of your inquiry as you have presented them, the Committee
would opine that misdemeanor convictions of trespass or disturbing the
peace do not rise to the level of a crime or deliberate wrongful act that
would reflect adversely upon the lawyer's fitness to practice law.
Similarly, the attorney's actions do not constitute "misconduct" as
defined in the Code of Professional Responsibility. In the view of the
Committee, the actions and subsequent misdemeanor convictions of this
attorney are not demonstrative of a lack of honesty, trustworthiness or
fitness as a lawyer in other respects. However, the Committee is of the
view that frequent and/or continual misdemeanor convictions of this nature
may result in more serious professional consequences.
In addition, § 54.1-3935(A) of the Code of Virginia provides that
revocation of an attorney's license is appropriate when there is evidence
that he has been convicted of a misdemeanor involving "moral turpitude."
Moral turpitude has been broadly defined as:
"[A]n act of baseness, vileness or depravity in the private and social
duties which man owes to his fellow men or to society in general, contrary
to the accepted and customary rule of right and duty between man and man."
The determination of the "moral turpitude" aspect of a crime is a legal
issue and is beyond the purview of this committee.
Further, the Committee would direct your attention to ABA Formal Opinion
No. 336, dated June 3, 1974, in which the Standing Committee on Ethics and
Professional Responsibility held that a lawyer must comply with the
applicable rules at all times, whether or not he or she is acting in a
professional capacity. The Committee believes that freedom of expression
does not allow an attorney to break the law; a lawyer, especially, should
not engage in conduct that would tend to lessen the public confidence and
integrity of the legal profession. (See EC:1-5)
Committee Opinion February 22, 1989
/1 Attorney Grievance Commission v. Walman, 280 Md. 453, 459, 374 A.2d
354, 358 (1977).