Lawyers And The Law: Who Polices Them?

Lawyers are not exempt from breaking the law, and when they do, it raises questions about the appropriate professional response in terms of ethics and disciplinary action. While some offenses like adultery do not impact a lawyer's fitness to practice law, other offenses like fraud, tax evasion, and drunk driving do. In such cases, the legal community is faced with the challenge of determining the nexus between the criminal conduct and the lawyer's profession.

Drunk driving

In the US, a DUI charge typically refers to driving with a blood alcohol concentration (BAC) of .08% or more. If you get a DUI, your license will likely be suspended, and you may face additional penalties such as fines, fees, and jail time. The length of the suspension and the severity of the penalties vary by state and depend on factors such as prior DUIs, BAC level, and refusal to take a chemical test.

For example, in some states, a first-offense DUI may result in a license suspension of 30 days, while in others, it could be a year or more. About half of the states mandate jail time for a first DUI conviction, typically between one day and a week. Fines for a first-offense DUI can range from $500 to $1,000 or more. Many states also require the installation of an IID, which prevents the car from starting unless the driver blows into a tube with an alcohol-free breath.

The impact of a DUI conviction can be significant and long-lasting, affecting a person's ability to pay bills, their reputation, and even their career prospects. It is important to understand your rights and to seek legal representation if you are facing a DUI charge. An experienced DUI lawyer can help protect your rights, evaluate the evidence, and work to get the charges dismissed or reduced.

Discrimination and harassment

The American Bar Association (ABA) has proposed Rule 8.4(g) of the Model Rules of Professional Conduct to address this issue. The rule aims to discipline lawyers who engage in harassment or discrimination by speech or conduct based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. This rule underscores that no lawyer is above the law and ethics, and they must face professional discipline for such misconduct.

While each state in the US drafts its own rules of professional conduct for lawyers, the adoption of Rule 8.4(g) would provide a consistent framework to address harassment and discrimination in the legal profession. This rule is significant because it ensures that all participants in the legal profession, including vulnerable groups, can carry out their roles without fear of harassment or discrimination. It also reinforces the principle that lawyers should not engage in unlawful discrimination when employing new lawyers and staff.

Instances of discrimination and harassment within the legal profession are not uncommon, particularly toward female attorneys. For example, a female litigator in her thirties shared her experiences of facing demeaning comments from opposing counsel regarding her sex and age. This behaviour, although unacceptable, is often used as a tool to intimidate or throw off opposing counsel during legal proceedings. However, by citing relevant Rules of Professional Conduct, Bar Association guidelines, and local rules, attorneys can push back against this inappropriate conduct and promote accountability.

Offences involving fraud

Lawyers are generally bound by the attorney-client privilege, which protects most communications between clients and their lawyers. However, this privilege does not cover statements made by a client if they are meant to further or conceal a crime, including fraud. This is known as the crime-fraud exception.

The crime-fraud exception applies if the client was in the process of committing or intended to commit fraud, and communicated with their lawyer with the intention of furthering or concealing the fraud. For example, if a client asks their lawyer for advice on hiding or destroying evidence, or how to launder profits by funneling them through a legitimate business, the crime-fraud exception would apply.

In the context of fraud, some common scenarios that may trigger the crime-fraud exception include:

• Suborning perjury: Asking an attorney to present testimony they know is false.
• Destroying or concealing evidence.
• Witness tampering.
• Concealing income or assets: For example, falsifying information about income or hiding assets in financial crimes.

If the crime-fraud exception applies, the attorney can be subpoenaed and must disclose the information. In some instances, the attorney may also have an ethical obligation to report the information, particularly if it relates to perjury, crucial evidence, missing witnesses or persons in danger, or serious threats of harm.

It is important to note that communications regarding past crimes, including fraud, remain protected under the attorney-client privilege. The crime-fraud exception typically applies only to ongoing or future crimes, where the client has a current intent to commit fraud.

Failure to file an income tax return

While I cannot find information specifically about lawyers who fail to file an income tax return, I can tell you about the consequences of not filing an income tax return in general.

In the United States, the Internal Revenue Service (IRS) provides information and reminders about the due date for filing federal tax returns. The most common tax forms and due dates are as follows:

• Form 1040 series for individuals – April 15 (unless you live in certain states)
• Form 1120 series for corporations – Due by the 15th day of the fourth month after the end of the corporation’s tax year
• Form 1065 series for partnerships – March 15 for businesses that follow the calendar year

If you don't file your tax return by the due date, you can request an extension. If you don't, the IRS may assess a penalty on your account for filing your tax return late. Even if you have an extension, any taxes owed are still due on the original tax return due date, and the IRS will charge interest and a late payment penalty.

In India, the deadline for filing a Belated Income Tax Return (ITR) is January 15th. For resident lawyers, the presumptive taxation scheme is an option, where professionals can declare 50% of their gross receipts as income and pay tax on the balance.

Failing to file an income tax return can have serious negative consequences, including penalties, interest, and, in more severe cases, prosecution.

Abusing a position of private trust

"Abuse of position of trust" is a legal term that refers to certain roles and settings where an adult has regular and direct contact with children. This includes people who regularly care for, train, supervise, or are in sole charge of a child under the age of 18. Examples of positions of trust include:

• Residential care homes
• Voluntary homes or children's homes
• Residential family centres
• Schools and educational institutions
• Youth justice workers
• Sports coaches
• Faith group leaders

In England, Wales, and Northern Ireland, the definition of a position of trust was expanded in 2022 to include people who regularly coach, teach, train, supervise, or instruct children under the age of 18 in sports, religious, or recreational contexts.

Abuse of a position of trust typically involves sexual offences against minors. In the UK, the legal age of sexual consent is 16 years old. However, in cases where a person in a position of trust is involved, the other party must be 18 or older to consent. This means that it is illegal for someone in a position of trust to engage in sexual activity with a child in their care, even if that child is over the age of consent.

Sexual offences defined in the Sexual Offences Act 2003 as part of an abuse of position of trust charge include:

• Sexual activity with a child
• Causing a child to watch a sexual act
• Sexual activity in the presence of a child
• Causing or inciting a child to engage in sexual activity by way of coercion

The maximum sentence for committing a sexual offence involving an abuse of trust is five years' imprisonment. Those found guilty may also be entered into the UK government's Child Sex Offender Disclosure Scheme (CSODS) database and may face significant impacts on their career prospects.

To prevent abuse of a position of trust, organisations should have robust safeguarding and child protection policies and procedures in place. This includes providing staff and volunteers with clear guidelines and training on appropriate behaviour and how to spot the signs of child abuse or grooming. It is also important for organisations to take any concerns raised against staff or volunteers seriously and respond sensitively and promptly.

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