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

protest group.

 

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

foregoing.

 

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."

/1

 

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

 

FOOTNOTES

 

/1 Attorney Grievance Commission v. Walman, 280 Md. 453, 459, 374 A.2d

354, 358 (1977).