UP CLOSE AND PERSONAL:
ETHICS AND THE LAWYER-LITIGANT
by
Roger Geller and Susan Strauss Weisberg
Personal conduct is not always a private
matter. Under Supreme Judicial Court Rule 4:01, § 3(1), a lawyer
may be sanctioned for ethical violations even if those violations occurred
outside the practice of law. Criminal conduct, certain sexual misconduct,
and dishonesty or financial improprieties in personal or business dealings
have all given rise to the discipline of attorneys. This article addresses
one aspect of a lawyer’s personal life which can result in the imposition
of discipline: willful violations of court orders entered against the lawyer
as a party to litigation.
A particularly egregious example of a lawyer’s disobedience
of court orders appears in Matter of Ring, 427 Mass. 186 (1998). In
that case, over a two-year period, a lawyer repeatedly and willfully flouted
a series of payment orders entered against him as a defendant in divorce proceedings
brought by his wife. The lawyer’s misconduct resulted in seven separate adjudications
of contempt, the issuance of three separate warrants for his arrest, and two
brief incarcerations. The Board of Bar Overseers and the Supreme Judicial
Court determined that this misconduct violated former Canon One, Disciplinary
Rule 1-102(A)(5) and (6), now Mass. R. Prof. C. 8(d) and (h), prohibiting
conduct prejudicial to the administration of justice and conduct adversely
reflecting on a lawyer’s fitness to practice law. Rejecting the lawyer’s argument
that his actions involved a purely private matter, the Court ordered him suspended
from the practice of law for three months. The Court indicated that it would
have imposed a longer suspension but for mitigating evidence of the lawyer’s
severe psychological impairment.
Ring was not the first case in which a lawyer was
disciplined for misconduct of this nature in the lawyer’s own divorce proceeding.
In Matter of Hodges, 11 Mass. Att’y Disc. R 116 (1995), the lawyer
repeatedly failed to pay court-ordered child support and defaulted at contempt
hearings. He was adjudicated in contempt on five occasions, and capias
warrants were issued for his arrest. The Court suspended the lawyer for three
months for this and other, unrelated misconduct. Similarly, in Private Reprimand
No. PR-92-37, 8 Mass. Att'y. Disc. R. 334 (1992), a lawyer’s former wife brought
contempt proceedings against him to collect child support arrears. After the
lawyer failed to appear in court, he was found in contempt, and an order was
entered for his incarceration. A capias was issued but never served
on the lawyer. He subsequently purged himself of the contempt, and the capias
was withdrawn. For this conduct the lawyer received a private reprimand. In
Admonition No. 93-34, 9 Mass. Att'y. Disc. R. 470 (1993), the lawyer, a defendant
in a paternity action, was privately admonished for his failure to comply
with a lawful court order to pay an increased amount of child support. The
lawyer appealed the increased support order and brought a motion to stay or
modify the order pending appeal. The lawyer paid the amount due under the
previous support order, but not the increased amount, pending the outcome
of his appeal. He was adjudicated in violation of probation after the motion
to stay was denied.
Another recent case illustrates how a lawyer’s personal
misconduct in handling an underlying professional obligation may result in
bar discipline. In Admonition No. 99-25 (4/29/99), the Board of Bar Overseers
admonished an attorney who had disobeyed a court order to pay a stenographer’s
bill. The gravamen of this lawyer’s offense was not that he had failed to
pay the bill, but rather that a court had to issue a capias to compel
his obedience to its commands. The stenographer had brought a small claims
action against the lawyer to recover her fee for a deposition transcript in
a case handled by the lawyer. Following mediation, the lawyer agreed and was
ordered to provide work to the stenographer of a specified value within three
months or to pay her bill in full within four months.
The lawyer did not provide the stenographer with any work,
did not pay the bill, and did not appear in court for a scheduled review.
As a result, the court entered a default judgment against the lawyer and issued
a notice to show cause why he should not be held in contempt. Although he
was served with the notice, the lawyer failed to appear, and the court issued
a capias for his arrest. The lawyer was notified of the capias
before it was served and paid the full amount of the judgment, plus costs,
that same day.
A majority of the hearing committee which had considered
the matter concluded that the lawyer’s payment of the judgment after the capias
had issued was sufficient to discharge his obligations and that to impose
discipline would subvert the disciplinary rules into a means of mere "debt
collection." On Bar Counsel’s appeal, the Board of Bar Overseers determined
that the lawyer’s conduct, culminating in the issuance of the capias,
violated DR 1-102(A)(5) and (6) because it "undermine[d] the legitimacy
of the judicial process."
The Board’s decision in this case is consistent with earlier
cases in which similar misconduct resulted in the imposition of discipline.
In Admonition No. 96-31, 12 Mass. Att’y Disc. R 650 (1996), a lawyer
was defaulted after he failed to defend a suit brought by a title examiner
to collect fees owed by the lawyer. When the lawyer did not pay the judgment,
the court issued a notice to show cause. The lawyer failed to appear at the
show cause hearing, and the court issued a capias to compel the lawyer’s
compliance. In Admonition No. 93-39, 9 Mass. Att’y Disc. R 476 (1993),
a lawyer failed to pay a small claims judgment until after he defaulted on
an order to show cause and a capias issued. In both cases, the Board
found violations of DR 1-102(A)(5) and (6).
Lawyers do not shed their ethical obligations when they
become litigants. As officers of the court, they cannot deliberately disobey
judicial directives, regardless of the nature of the litigation. Even if the
underlying controversy is purely personal, a lawyer’s willful disobedience
of a court order may have disciplinary implications.
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Roger Geller and Susan Strauss Weisberg are assistant bar counsel
with the Office of the Bar Counsel, Board of Bar Overseers.
