8 ARIZONA ATTORNEY SEPTEMBER 2017 www.azbar.org/AZAttorney
by David D. Dodge
David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, and he practices at
David D. Dodge, PLC in Phoenix.
and the Rules
EYE ON ETHICS
Fake News, Alternative Facts, Legal Ethics
states, “Lawyers holding public office assume
legal responsibilities going beyond those of
other citizens.” The Comment, however,
is not found in the District of Columbia’s
ethics rules. Critics of the professors’ position claim that the basis of their complaint
could just as well have been used against Mr.
Obama’s “if you like your health plan, you
can keep it” and Secretary Clinton’s misstatements when trying to explain the attack
at the Benghazi consulate. Recognizing that
disciplining lawyers in public office under
Rule 8.4(c) could lead to “mischief and
worse,” the professors still insist that Conway’s actions call into serious question her
fitness for the practice of law.
Whatever the outcome of the complaint,
the rule is broad enough to include a lot of
“wobble” in its interpretation—though it’s
unlikely the remarks of one commentator
will help clarify the question: “If one of the
president’s chief advisors cannot freely speak
her mind, even when it is full of nonsense,
then who can?” 13
What with all the talk about “fake news,” “alternative facts”
and other new expressions floating around since the last election, I guess
it should have come as no surprise when, on February 20, 2017, 15
professors at 12 different law schools, all of whom teach courses relating
to legal ethics, filed an ethics complaint1 with the Office of Disciplinary
Counsel for the District of Columbia against none other than Kellyanne
Conway, Counselor to the President, who was called on during the campaign and in the White House to defend what was said by Mr. Trump.
The ethical rule the professors said was violated is what Arizona has
adopted as ER 8.4(c), 2 stating it is professional misconduct for a lawyer
to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” ER 8.4 defines ways lawyers get crosswise with disciplinary
authorities, seven of which are easy to understand.
But two other ways are not as clear, including that found in subsection (c), quoted above. And subsection (d) states that it is professional
misconduct for a lawyer “to engage in conduct that is prejudicial to the
administration of justice.” 3 Examples include when a prosecutor filed an
indictment with knowledge that some of the charges were time-barred,
filed a lawsuit against judges when she knew they had judicial immunity,
and filed a criminal complaint against a judge without probable cause, 4
and another case where the prosecutor had an affair with a judge before
whom she appeared regularly and then denied the fact when questioned
by the State Bar. 5 Subsection (d) can be violated through purely negligent conduct. 6
Not so with the conduct proscribed by ER 8.4(c). The “dishonesty,
fraud, deceit or misrepresentation” contemplated under this part of the
rule must be shown to have been intentional. 7 Examples are the surreptitious recording of telephone conversations with opposing counsel8; the
use, under certain circumstances, of private investigators who misrepresent their identities in order to collect information9; and the participation in a sham trial after the plaintiff and a defendant had settled in order
to get evidence before the court that bore on a pending motion against
a co-defendant. 10
Back to Ms. Conway. First, the professors take her to task for her
references to a “Bowling Green Massacre” as justification for an
executive order banning immigrants from seven predominantly
Muslim countries. The professors point out that such an event
never happened and that Ms. Conway’s statement had been
intentionally repeated on several other occasions. Second, they
refer to Conway’s misstatement that then-President Obama
had banned Iraqi refugees from coming into the United States
after the events she described as the “massacre.” The complaint
points out that Mr. Obama had only ordered enhanced screening procedures. Third, the professors address Conway’s reference to “alternative facts” when discussing the size of the inauguration crowd, accusing her of using the expression to justify
facts she knew were wrong. Finally, the complaint accuses her
of abusing her position to endorse Ivanka Trump’s products on
national television, a violation of federal conflicts of interest
The professors’ complaint drew considerable comment, pro11
and con. 12 As they admit in the letter, Comment [ 5] to most
jurisdictions’ versions of Model Rule 8.4, including Arizona,
2. Ariz. Rules of Professional Conduct, Rule 42,
3. There is an excellent discussion of these two
provisions in ARIZONA LEGAL ETHICS HAND-
BOOK ¶¶ 8.4:400, 8.4:500 (4th ed. 2016).
4. In re Aubuchon, 309 P.3d 886 (Ariz. 2013).
5. In re Dean, 129 P.3d 943 (Ariz. 2006).
6. In re Clark, 87 P.3d 827 (Ariz. 2004).
8. Ariz. Ethics Op. 95-03 (Tape Recording;
Opposing Counsel) (Feb. 1995).
9. Ariz. Ethics Op. 99-11 (Misrepresentation;
Investigators; Employees of Lawyers) (Sept.
10. In re Alcorn, 41 P.3d 600 (Ariz. 2002).
11. Joe Patrice, Read the law professors’ ethics
complaint against Kellyanne Conway,
12. Steven Lubet, The misconduct complaint against
Trump’s advisor is dangerously misguided,