Mens Rea Standards in Lawyer Disciplinary Codes

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Many of the obligations imposed on lawyers by rules of professional conduct have a specified mens rea, or mental state,1 requirement. For example, Rule 3.3(a) of the ABA Model Rules of Professional Conduct ("Model Rules") provides that a lawyer "shall not knowingly ... make a false statement of fact or law to a tribunal .... fail to disclose" directly adverse legal authority in the jurisdiction, or "offer evidence that the lawyer knows to be false.",2 Under Rule 8.2(a), a lawyer may not "make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge."3 Rule 4.3 provides that when a lawyer "knows or reasonably should know that [an] unrepresented person misunderstands the lawyer's role," the lawyer must make "reasonable efforts to correct the misunderstanding."4 With respect to client communications, Rule 1.4(a) requires that a lawyer "reasonably consult" the client about the means of the representation and keep the client "reasonably informed about the status of a matter.",5

But there are just as many rules that do not specify any particular mental state requirement. For example, Rule 1.6 provides that a lawyer "shall not reveal information relating to the representation of a client" except under certain circumstances, 6 and Rule 1.7(a) prohibits a lawyer from representing a client "if the representation involves a concurrent conflict of interest," unless certain conditions are met.7 With respect to mishandling client funds, Rule 1.15(a) requires a lawyer to keep client funds separate from lawyer funds and to keep "[c]omplete records of such account funds and other property.",8 Rule 7.1 provides that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." 9

What are we to make of these rules that have no articulated mens rea requirement? Are they strict liability rules? Consider a lawyer who discusses a client's case with an individual she reasonably believes is authorized to act on the client's behalf, but who had in fact been discharged by the client just hours before the conversation. Has the lawyer violated the prohibition against revealing client confidences? Or consider a lawyer who agrees to represent a new client after performing a reasonable conflicts check, which failed to detect a serious conflict because of a clerical error in inputting the relevant information. Is the lawyer subject to discipline for agreeing to represent conflicting interests? What about a lawyer who fails to maintain complete and accurate records of his clients' trust account because an unexpected catastrophe destroyed both his office and his backup records? Has that lawyer mishandled client funds?

Even when a rule contains at least one mens rea requirement, it is often unclear whether the same, or indeed any, mens rea requirement applies to other material elements of the rule. For example, Rule 1.10(a) provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9," except in certain circumstances.'° For disciplinary purposes, is it sufficient that a lawyer knows that she is representing a client, or must she also know (or negligently fail to discover) that the representation of that client by an associated lawyer would violate Rules 1.7 or 1.9? What if the lawyer knows that representation by an associated lawyer constitutes a conflict and reasonably (but incorrectly) believes that the associated lawyer has obtained the client's informed consent? And what if the lawyer knows all the relevant facts and circumstances but mistakenly believes that representation under these circumstances satisfies the disciplinary rules? A lawyer's failure to know of the existence of a particular rule should be irrelevant, but what if the lawyer reasonably believes that the rule should be interpreted in a manner contrary to what a court ultimately determines the rule to require?

Courts sometimes say that rules that have no articulated mens rea requirement lack a "scienter requirement,"11 but it is unclear whether they mean that the rule imposes strict liability or merely that the rule does not impose any requirement that the lawyer have acted intentionally or knowingly. 12 Similarly, courts sometimes characterize such a rule as a "per se offense,"' 3 in which there is no "innocent behavior"' 14 or good faith 15 excuse; yet, again it is unclear whether the courts mean this literally or whether what they are really saying is that the rule is violated even when the misconduct resulted from nothing more than "simple negligence."1 6 More typically, courts simply fail to address the mental state element in deciding whether a rule has been violated. 1 7

Other confusions abound. Courts have failed to distinguish between negligence and mere (non-negligent) inadvertence.1 8 Ethics committees have taken the position that lawyers can be disciplined for negligent disclosure of client confidences under a code provision that contains a knowledge requirement.' 9 A court interpreting the same code provision assumed that knowledge is required under that particular provision but nevertheless disciplined the lawyer for negligent disclosure under a rule broadly prohibiting conduct adversely reflecting on the lawyer's fitness to practice law.20 A different court emphasized that the respondent's state of mind was irrelevant to determining whether a violation of the conflict of interest rule occurred. However, that court simultaneously approved commentary stating that a lawyer may not be disciplined unless the conflict is known in advance or is discovered after the representation was undertaken.2 ' Yet another court ruled that a lawyer "knowingly" gives false testimony when the lawyer "recklessly state[s] as facts things of which he [i]s ignorant."22

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