Do we ever take off our “lawyer hats”?

The question has been in the news because of a tweet by Rep. Matt Gaetz, who represents Florida’s first congressional district and is a member of the Florida bar.  Pictured at the right, the tweet was directed at Michael Cohen, President Trump’s former attorney, the night before Cohen testified before Congress for the first time on Feb. 27.

The Florida bar opened an ethics inquiry in response to what a Law360 article termed “several complaints” about the tweet.  Some who tweeted in response to Gaetz viewed his words as a possible obstruction of justice or witness intimidation.  Gaetz later deleted the tweet and apologized, saying he did not mean to threaten anyone.  According to Law360, Gaetz told reporters he was “witness testing,” not witness tampering.

“If rules have been violated, the Florida Bar will vigorously pursue appropriate discipline by the Florida Supreme Court,” a bar spokesperson said in a statement reported by many media outlets. “The Florida Bar takes its responsibility of regulating lawyer conduct very seriously.”  We don’t know if Representative Gaetz violated any laws or ethics rules.  But the situation presents an opportunity to explore some concepts.

“Lawyer conduct”

So when is “lawyer conduct” involved?  As ethics gurus John Dzienkowski and (the late) Ron Rotunda wrote in their Lawyer’s Deskbook, it’s when the conduct “functionally” relates to the capacity to practice.

Some ethics rules specifically target conduct in connection with client representation.  For instance Rule 4-4.4 of the Florida  Rules of Professional Conduct (“Respect for Rights of Third Persons”), which tracks Model Rule 4.4, says that “In representing a client, a lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”

On the other hand, the Preamble to the Florida Rules (and the Model Rules) says “A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.”

When a lawyer violates the law, even when it doesn’t involve representing a client, professional discipline can follow.  For instance, under Model Rule 8.4(b), it is professional misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”  These are characteristics that are relevant to law practice, say the comments, and offenses involving dishonesty or serious interference with the administration of justice, or show the lack of other qualities that make a lawyer “fit,” can justify discipline.

Under state versions of Model Rule 8.4(b), lawyers have been disciplined for everything from tax violations, to drug offenses, to road rage incidents, to fraudulently occupying a rent-controlled apartment.  (Interestingly, regulators in the Sunshine State view compliance with child-support obligations as  being in the same category:  Rule 4-8.4(h) makes it professional misconduct to “willfully refuse” to timely pay court-ordered child support.)

Keeping that lawyer hat on

As one court put it, “Courts possess the power to discipline attorneys for conduct that is both in and out of their profession so as to ensure the public’s right to representation by attorneys who are worthy of trust.”  That is true no matter what hat you happen to be wearing.