“Some thoughts on Lying, Cheating, and Stealing”

The current issue of The North Carolina State Bar Journal features a timely article entitled “Some Thoughts on Lying, Cheating, and Stealing,” co-authored by John Winn, Associate Professor of Business Law at Shenandoah University’s Harry F. Byrd School of Business, and G.S. Crihfield, partner in the Greensboro firm of Douglas, Ravenel, Hardy, Crihfield & Hoyle, LLP, and State Bar Councilor on the Grievance Committee. The essay in the Bar’s highly respected quarterly publication not so subtly addresses the well publicized charges of “dishonesty, fraud, deceit, or misrepresentation” brought against Defendant Nifong by offering a discourse on the damage done to the profession by dishonest attorneys.

“The Anglo American tradition created three professions: the clergy, the law, and the military. In the 19th century, the medical profession joined the three traditional professions to constitute the professional world we know today. Persons engaged in the learned professions were expected to conduct themselves in an honest and honorable manner and exercise sound and impartial judgment even in very critical situations. As with most theories concerning standards of conduct, there are circumstances where members of professions stray from their strict obligations of candor and honesty to their constituents.

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“The North Carolina Rules of Professional Conduct in Rule 8.4(c) state it is “professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Lawyers hold a place of privilege, special trust, and confidence in society. Violations of the Model Rules of Professional Conduct that involve culpable deception, dishonesty, or theft which occur within the course and scope of professional duties cause disproportionate injury to public confidence and overall respect for the legal profession.

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“At a less dramatic level the issues we raise in this article continue to diminish public respect for lawyers. A recent Columbia Law School poll found that four in ten Americans viewed lawyers as “essentially dishonest.” Lawyer jokes, many deeply contemptible, reflect poorly on an honorable profession. At best, the public sometimes views us as no more than a “necessary evil.” At worst, we are considered devious, mercenary, arrogant, and moneygrubbing. A recent letter to the editor of the Greensboro News and Record even described us as “blood suckers.”

Given the widespread attention that the Nifong Scandal has brought to the North Carolina State Bar (and the skepticism with which many have come to view the Bar‘s resolve in disciplining prosecutors following the light treatment given David Hoke, Sharon Graves, Kenneth Honeycutt, and Scott Brewer), it is not surprising that the article attempts to make a case for the Bar’s “good record in disciplining its attorneys.”

“Unfortunately, some believe the North Carolina State Bar has not done enough over the years to effectively remove bad apples from the profession. (Since 2001, the DHC has disbarred 42 lawyers, and 33 lawyers have surrendered their license.) Generally, North Carolina has a good record in disciplining its attorneys.”

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“The North Carolina Chief Justice’s Commission on Professionalism together with the State Bar and the North Carolina Bar Association has taken the lead nationally to promote professionalism and keep these issues before the members of the Bar on a regular basis. Likewise, the State Bar requires a one hour CLE program on mental health and substance abuse issues, frequently found to be an underlying cause for misconduct on the part of attorneys.”

Perhaps with Nifong’s transparently deceitful response to the Grievance Committee in mind, Winn and Crihfield decry the damage done to the grievance process and the profession by those who extend their dishonesty in an effort to avoid discipline. They appear to hint that it may be the misrepresentations and absence of contrition in Nifong‘s petulant responses that place his license to practice in the greatest jeopardy.

“The Grievance Committee, however, also occasionally receives responses from lawyers with respect to complaints filed against them under the Rules of Professional Conduct which, of themselves, appear to be, or are, false or seriously misleading. Arguably, the Grievance Committee should respond vigorously in such circumstances. Dishonesty of this nature casts an immediate pall on both the grievance process and the legal profession at large. Often enough, the seriousness of these deceptions exceed in gravamen the underlying grievance to which the lawyer is responding. The State Bar has a rule which can trigger a grievance, sua-sponte, should a lawyer submit potentially false or misleading information in a response to an initial inquiry by the Grievance Committee as a part of any State Bar disciplinary proceeding.”

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“Truth and honesty in their greatest perfection can occasionally be difficult. While minor lapses and shortcomings are not uncommon, they should not be condoned. Nevertheless, some misconduct, while clearly wrong, may not rise to a level which merits the drastic remedy of disbarment. For these reasons, exceptions should be made for defined minor violations of Rule under Rule 8.4(c), especially when there has been prompt remediation and candor by the lawyer as appropriate.

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“Justice Tom Clark noted almost 30 years ago that unless the Bar embraces “a spirit of honesty and decency and unless it is inspired to insist upon the exercise of the highest ideals in the practice of law, then no disciplinary system can be effective and no code of professional conduct will be anything more than a hypocritical farce.” As a profession, we must all keep before us our sacred obligations to the public to meet those requirements of conduct.”

It is difficult to view the timing, content, and placement of this essay as coincidental, given the microscope under which the Nifong Scandal has placed the NC State Bar. Hopefully, the publication of this call to “generate discussion among members of the profession and the members of the State Bar Council to consider these issues” serves as another signal that the State Bar has resolved to kick Nifong off the island.