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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4300" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/03/gaetz-deleted-1-300x235.jpg" alt="" width="300" height="235">Do we ever take off our &ldquo;lawyer hats&rdquo;?
The question&nbsp;has been&nbsp;in the news because of a tweet by Rep. Matt Gaetz, who represents Florida&rsquo;s first congressional district and is&nbsp;a member of the Florida bar.&nbsp; Pictured at the right, the&nbsp;tweet was directed at Michael Cohen, President Trump&rsquo;s former attorney, the night before Cohen testified before Congress for the first time on Feb. 27.
The Florida bar opened an ethics inquiry in response to what a <a href="https://www.law360.com/articles/1133556/fla-bar-opens-review-over-rep-gaetz-s-controversial-tweet">Law360 article</a> termed &ldquo;several complaints&rdquo; about the tweet.&nbsp; Some who tweeted in response to Gaetz viewed his words as a possible <a href="https://www.businessinsider.com/rep-matt-gaetz-michael-cohen-congressional-testimony-2019-2">obstruction of&nbsp;justice</a> or witness intimidation.&nbsp;&nbsp;Gaetz later <a href="https://www.washingtonpost.com/nation/2019/02/27/accused-witness-tampering-matt-gaetz-apologizes-deletes-tweet-insists-he-wasnt-threatening-cohen/?utm_term=.a172ae7e3e95">deleted the tweet and apologized</a>, saying&nbsp;he did not mean to threaten anyone.&nbsp; According to Law360, Gaetz told reporters he was &ldquo;witness testing,&rdquo; not witness tampering.
&ldquo;If rules have been violated, the Florida Bar will vigorously pursue appropriate discipline by the Florida Supreme Court,&rdquo; a bar spokesperson&nbsp;said in a statement reported by many media outlets. &ldquo;The Florida Bar takes its responsibility of regulating lawyer conduct very seriously.&rdquo;&nbsp; We don&rsquo;t know if Representative Gaetz violated any laws or ethics rules.&nbsp; But the situation presents an opportunity to explore some concepts.
&ldquo;Lawyer conduct&rdquo;
So when is &ldquo;lawyer conduct&rdquo; involved?&nbsp;&nbsp;As ethics gurus&nbsp;John Dzienkowski and (the late) Ron Rotunda wrote in their Lawyer&rsquo;s Deskbook, it&rsquo;s when the conduct &ldquo;functionally&rdquo; relates to the capacity to practice.
Some ethics rules specifically target conduct in connection with client representation.&nbsp; For instance <a href="https://www-media.floridabar.org/uploads/2019/02/Ch-4-Dec-14-2018-RRTFBb.pdf">Rule 4-4.4</a> of the Florida&nbsp; Rules of Professional Conduct (&ldquo;Respect for Rights of Third Persons&rdquo;), which tracks <a href="https://www-media.floridabar.org/uploads/2019/02/Ch-4-Dec-14-2018-RRTFBb.pdf">Model Rule 4.4</a>, says that &ldquo;In representing a client, a lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.&rdquo;
On the other hand,&nbsp;the <a href="https://www-media.floridabar.org/uploads/2019/02/Ch-4-Dec-14-2018-RRTFBb.pdf">Preamble to the Florida Rules</a> (and&nbsp;the Model Rules) says &ldquo;A lawyer&rsquo;s conduct should conform to the requirements of the law, both in professional service to clients and&nbsp;in the lawyer&rsquo;s business and personal affairs.&rdquo;
When a lawyer violates the law, even when it doesn&rsquo;t involve representing a client, professional discipline can follow.&nbsp; For instance, under&nbsp;<a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Model Rule 8.4(b)</a>, it is professional misconduct to &ldquo;commit a criminal act that reflects adversely on the lawyer&rsquo;s honesty, trustworthiness or fitness as a lawyer in other respects.&rdquo;&nbsp; These are characteristics that are relevant to law practice, say the comments, and offenses involving dishonesty or serious interference with the administration of justice, or show the lack of other&nbsp;qualities that make a lawyer &ldquo;fit,&rdquo;&nbsp;can justify discipline.
Under&nbsp;state versions of Model Rule 8.4(b), lawyers have been disciplined for everything from <a href="https://caselaw.findlaw.com/ia-supreme-court/1072865.html">tax violations</a>, to <a href="https://caselaw.findlaw.com/fl-supreme-court/1536304.html">drug offenses,</a> to <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-3857.pdf">road rage incidents,</a>&nbsp;to <a href="https://www.leagle.com/decision/2003466304ad2d1621439">fraudulently occupying a rent-controlled apartment</a>.&nbsp; (Interestingly, regulators in the Sunshine State view compliance with child-support obligations&nbsp;as &nbsp;being in the same category:&nbsp;&nbsp;<a href="https://www-media.floridabar.org/uploads/2019/02/Ch-4-Dec-14-2018-RRTFBb.pdf">Rule&nbsp;4-8.4(h)</a> makes it professional misconduct to &ldquo;willfully refuse&rdquo; to timely pay court-ordered child support.)
Keeping that lawyer hat on
As one <a href="https://www.leagle.com/cite/275%20A.D.2d%201">court</a> put it, &ldquo;Courts possess the power to discipline attorneys for conduct that is both in and out of their profession so as to ensure the public&rsquo;s right to representation by attorneys who are worthy of trust.&rdquo;&nbsp; That is true no matter what hat you happen to be wearing.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Congressman’s tweet about Michael Cohen draws FL disciplinary review