Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Public Censure of Tennessee Attorney is Stark Reminder that Attorneys’ Conduct Outside of the Practice of Law Has Consequences

Last month, the Tennessee Supreme Court publicly censured an attorney finding she “improperly used methods of obtaining evidence and attempting to gain an advantage against her husband for their divorce proceeding.

In 2012, a U.S. Magistrate Judge found the attorney violated wiretap statutes as “part of a larger scheme to gain advantage of the plaintiff during their divorce thereby warranting punitive damages in the amount of $10,000.”  (Klumb v. Goan (E.D. Tenn. 2012) 884 F. Supp. 2d 644, 645-646.)  The attorney’s husband had alleged she used the software to intercept emails sent to him and altered them to make it look like he was having an affair with the sender. The affair was significant because of allegations the attorney had altered legal documents so that her ex-husband was required to pay more money in the divorce if he committed adultery.

Albeit extreme, the aftermath of conduct occurring in divorce proceedings is a reminder that attorneys are subject to discipline for conduct outside of their practice.   An attorney’s acts “involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Bus. & Prof. Code §6106 [emphasis added].)

Earlier this year, the California Supreme Court rejected “the State Bar Court majority's recommendation” and declined “to admit [Steven] Glass to the practice of law.”   (In re Glass (2014)  58 Cal. 4th 500, 526.)  As many will recall, Glass was the reporter at the New Republic who, starting in 1996, began “fabricating material for publication. The fabrications continued and became bolder and more comprehensive until he was exposed and fired in May 1998.”   The opinion outlined years of conduct which may not necessarily be deemed “criminal” nor blatantly dishonest, but were inconsistent with the “moral fitness to practice law.”  (Id. at p. 526.)  The Court noted that “much of Glass's energy since the end of his journalistic career seems to have been directed at advancing his own career and financial and emotional well-being” which included an appearance on 60 minutes coinciding with the release of a novel earning him a $175,000 fee.  (Id. at p. 524.)  

Every California attorney is bound by principals of moral fitness “whether the act is committed in the course” of their “relations as an attorney or otherwise.”

– Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**