By Hal R. Lieberman and Harvey Prager
New York is one of only five states where the Rules of Professional Conduct prohibit a lawyer, without more, from “engag[ing] in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer” — the so-called “Catch-all Rule” of New York Rules of Professional Conduct (NYRPC), Rule 8.4(h). Significantly, the American Bar Association (ABA) abandoned the Catch-all Rule 32 years ago when, in 1983, it adopted and promulgated the Model Rules of Professional Conduct — replacing the ABA’s Model Code of Professional Responsibility, which did contain the Catch-all Rule. Plainly, the vagueness of the “conduct that adversely reflects” phrase makes the Catch-all Rule susceptible to varying subjective interpretations, and thus, necessarily presents the risk of arbitrary application. Moreover, it gives rise to concerns as to whether, as applied, it provides sufficient notice under the Due Process Clause to those against whom it is applied.
This article focuses on issues pertaining to vague rules in general and the Catch-all Rule in particular, with emphasis on how the Catch-all Rule has been applied in New York. We will present the article in two parts. In Part 1, we will briefly explore the origins and history of the Catch-all Rule in the context of the ABA’s rule making, and then discuss two cases under the Rule decided—with very different results—within four days of each other in 1991 by, respectively, the United States Supreme Court and the New York Court of Appeals, namely Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) and In re Holtzman, 78 N.Y.2d 184 (1991). In Part 2, we will examine New York’s application of the Catch-all Rule, with special attention to the standard applied in a more recent case, In re Holley, 285 A.D.2d 216 (1st Dept. 2001). We will conclude by questioning whether it is time for New York to join the vast majority of states that have abandoned the Catch-all Rule.
Making and Unmaking of the Catch-all Rule
ABA CANONS. In 1908, the ABA began adopting the Canons of Professional Ethics (Canons). Originally, there were 32 Canons. The last of the Canons — Canon 47 — was added in 1937. Significantly, the courts did not adopt or promulgate the Canons as law. Indeed, the style and coverage of the Canons, which often spoke only in generalities, made them unsuitable for full codification. In contrast to the style of black letter law, many of the Canons’ norms were set forth in courtly prose, full of flowery but vague exhortations to honesty and integrity. Accordingly, the Preface to the ABA’s Model Code of Professional Responsibility, which replaced the Canons, pointed out that:
[t]he previous Canons were not an effective teaching instrument and failed to give guidance to young lawyers beyond the language of the Canons themselves. … They were not cast in language designed for disciplinary enforcement and many abounded with quaint expressions of the past. Preface, ABA Model Code of Professional Responsibility.
Similarly, in 1934, Justice (later Chief Justice) Harlan Fiske Stone observed that “[o]ur canons of ethics for the most part are generalizations designed for any earlier era.” Harlan Fiske Stone, The Public Influence of the Bar (1934). Nevertheless, as we show in the next section, the Canons were the seedbed for the Catch-all Rule.
ABA MODEL CODE. In 1964, the ABA appointed a committee, under the chairmanship of Edward L. Wright, to revise the Canons. The Wright Committee developed the Model Code of Professional Responsibility (Model Code), which the ABA adopted in 1969. Within a few years, the courts in virtually all American jurisdictions adopted (and often adapted) the Model Code. The Model Code employed a three-part structure, with mandatory Disciplinary Rules (DRs), aspirational Ethical Considerations (ECs), and axiomatic Canons. In New York, the Appellate Divisions formally adopted only the DRs, which were binding on lawyers. The New York State Bar Association promulgated nonbinding ECs, as well as the Canons, Preamble, and Preliminary Statement, all of which were merely aspirational.
Although the language of the Model Code was generally somewhat less vague and flowery than the Canons, the Catch-all Rule — perhaps more than any other aspect of the Model Code — fully reflects the style of the Canons. In particular, Canon 29 (“Upholding the Honor of the Profession”) and Canon 32 (“The Lawyer’s Duty in Its Last Analysis”) stand out as precursors of the Catch-all Rule. Canon 29 exhorts lawyers to “strive at all times to uphold the honor and to maintain the dignity of the profession[.]”
Correspondingly, Canon 32 proclaims that a lawyer:
advances the honor of his profession and the interests of his client when he renders service or gives advice … tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law. … [A]bove all a lawyer will find his highest honor in a deserved reputation for fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen.
The ABA’s Model Code contained footnotes, which were intended, inter alia, “to enable the reader to relate the provisions of this Model Code to the [Canons].” ABA Model Code, n.1. DR 1-102(A)(6) — the Catch-all Rule — was supplemented by note 14, which consists of eloquent but vague entreaties excerpted from Schware v. Bd. of Bar Examiners, 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring) and In re Wilson, 391 S.W.2d 914, 917 (Mo. 1965). Notably, Wilson, a Canons-era decision that foreshadowed the Catch-all Rule, cites with favor a Missouri rule providing that a lawyer shall not be guilty “of any other misconduct whereby … he should no longer be entrusted with the duties and responsibilities belonging to the office of an attorney.” Id. (emphasis added). As a reflection of its origins in the Canons, the Catch-all Rule is similarly prone to criticism that it is “not cast in language designed for disciplinary enforcement.” Preface, ABA Model Code of Professional Responsibility.
ABA MODEL RULES. Unsatisfactory experience with the Code led the ABA to appoint a special commission, chaired by Robert J. Kutak (Kutak Commission), in 1977 — a mere seven years after the ABA’s adoption of the Model Code — to examine whether the Model Code should be revised or replaced. The Kutak Commission recommended what eventually became the ABA’s Model Rules of Professional Conduct (Model Rules).
In drafting the Model Rules, which the ABA officially adopted in August 1983, and which have served as a model for the Rules of Professional Conduct in virtually every state, the ABA came up with a practical solution to resolve doubts about the constitutionality and utility of the vague Catch-all Rule: It eliminated the Rule. See e.g., In re Conduct of Rochat, 295 Or. 533 (1983) (quoting Annotated Code of Professional Responsibility), (American Bar Foundation 1979), at 12. Thus, the Model Rules, as adopted by the ABA and promulgated for consideration by the states, do not contain the Catch-all Rule.
Gentile and Holtzman Cases
New York, however, in at least three respects, has marched to its own drum in connection with the Catch-all Rule. First, New York did not adopt (and adapt) the Model Rules until 2009, preferring instead to retain its version of the Model Code (which included the Catch-all Rule). Second, when it finally adopted a version of the Model Rules, New York — unlike virtually every other U.S. jurisdiction — modified them in order to keep the Catch-all Rule. Third, finally, the New York Court of Appeals’ (and, accordingly, the Appellate Divisions’) application of the Catch-all Rule has underscored the Rule’s vulnerability to varying subjective interpretations, arbitrary enforcement, and insufficient notice. In this regard, Gentile and Holtzman, decided four days apart in 1991 by the U.S. Supreme Court and the New York Court of Appeals, stand in stark contrast to each other. In Gentile, the U.S. Supreme Court found Nevada Supreme Court Rule 177(3) unconstitutionally vague, while in Holtzman, the New York Court of Appeals (without mentioning Gentile) held that the Catch-all Rule was not unconstitutionally vague.
GENTILE CASE. In Gentile, the Supreme Court recognized that a vague rule fails “to give fair notice to those it is intended to deter and creates the possibility of discriminatory enforcement.” Gentile, 501 U.S. at 1082 (O’Connor, J., concurring). Nevada Rule 177 dealt with the subject of “Trial Publicity,” and proscribed certain categories of public statements by a lawyer that may affect a pending adjudicatory proceeding. At the time, Nevada Rule 177(1) prohibited a lawyer from making extrajudicial statements to the press that he knows or reasonably should know will have a “substantial likelihood of materially prejudicing” an adjudicative proceeding. Nevada Rule 177(2) listed a number of statements that are “ordinarily … likely” to result in material prejudice. Nevada Rule 177(3) — a so-called “safe harbor” — provided that, notwithstanding subsection 1 and 2, a lawyer “may state without elaboration … the general nature of the … defense.” See Gentile, 501 U.S. at 1048.
Dominic Gentile, an attorney, held a press conference the day after his client, Sanders, was indicted on criminal charges under Nevada law. Six months later, a jury acquitted Sanders. Subsequently, the State Bar of Nevada filed a complaint against Gentile, alleging that statements he made during the press conference violated Nevada Rule 177. After a hearing, the Disciplinary Board found that Gentile violated the Rule and recommended that he be privately reprimanded. The Supreme Court of Nevada affirmed, rejecting Gentile’s contention that the Rule violated his right to free speech.
The U.S. Supreme Court, in reversing the judgment below, held that Nevada Rule 177(3):
provides insufficient guidance [to a lawyer] because ‘general’ and ‘elaboration’ are both classic terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated. Gentile, 501 U.S. at 1048 (Kennedy, J., for the Court).
Significantly, the Court noted that Gentile was found in violation of the Rules after studying them and making a conscious effort at compliance, thus demonstrating that Rule 177 “creates a trap for the wary as well as the unwary.” Id. at 1050.
HOLTZMAN CASE: Background Facts. In 1987, Elizabeth Holtzman — who had previously served as a member of the U.S. House of Representatives from 1973 to 1981, and subsequently served as Comptroller of New York City from 1990 to 1993 — was serving as the elected District Attorney of Kings County, NY. In November 1987, she received a report from the head of her office’s sex-crimes bureau that, during the course of a criminal sexual assault trial completed several weeks earlier, People v. Roe, Judge Irving W. Levine, an elected trial judge, had directed the complaining witness to get down on her hands and knees and demonstrate the position in which she had been raped. Holtzman v. Grievance Comm. for the Tenth Judicial Dist., Petition for Writ of Certiorari, 1991 WL 11177311 at *2-3. This report was confirmed by memoranda and a sworn affirmation of Gary Farrell, the Assistant District Attorney (ADA) who had tried the case and purportedly witnessed the rape demonstration. Id.
Holtzman directed one of her senior advisors to prepare letters — addressed to the Administrator of the N.Y. State Commission on Judicial Conduct, and to Judge Kathryn McDonald, chair of a committee who had been appointed by the Chief Judge of the Court of Appeals, to address gender bias in the courts — describing ADA Farrell’s report of the rape demonstration, and expressing Holtzman’s opinion that the judge had acted improperly. Id. at *3–4. The letters stated that they were based on the report of the ADA who had tried the case, and they described the demonstration in words virtually identical to Farrell’s memoranda and sworn affirmation. On Dec. 1, 1987, Holtzman sent one of the letters to Judge McDonald and publicly released a copy. Id. at *5.
The letter to Judge McDonald led to a public uproar, sparked by a claim by Roe’s defense attorney and a court officer that no rape demonstration had occurred. Id. at *6. Judge Levine, it was claimed, had refused to permit it. Id. Consequently, the Grievance Committee for the Tenth Judicial District of New York instituted disciplinary proceedings by issuing a statement of charges alleging, inter alia, that Holtzman had “engaged in conduct that adversely reflects on her fitness to practice law by making public, as District Attorney of Kings County, false accusations of misconduct against a judge without first determining the certainty of the merit of the accusations.” Id. After a hearing, the Committee privately reprimanded Holtzman, finding, inter alia, that by publicly releasing her letter to Judge McDonald, Holtzman’s conduct adversely reflected on her fitness as a lawyer in violation of the Catch-all Rule. Id. at *6–7. Holtzman, in turn, petitioned the Second Department to vacate the reprimand, but the Appellate Division upheld it in a brief order. Id.
HOLTZMAN CASE: Court of Appeals Decision. The New York Court of Appeals affirmed the Appellate Division’s finding of a violation of the Catch-all Rule, and rejected, inter alia, Holtzman’s contention that the Catch-all Rule was unconstitutionally vague if construed to prohibit attorney criticism of judges. Holtzman, 78 NY2d at 191. The Court explained: “Were we to find such language impermissibly vague, attempts to promulgate general guidelines such as [the Catch-all Rule] would be futile.” Id. The Court also rejected Holtzman’s argument that she could not be disciplined without a showing that she had known her accusation to be false or had acted with “reckless disregard” of truth or falsity, as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny. The Court acknowledged that the “constitutional malice” standard of New York Times had not been met, but held that “[i]n order to adequately protect the public interest and maintain the integrity of the judicial system, there must be an objective standard, of what a reasonable attorney would do in similar circumstances.” Holtzman, 78 NY2d at 191.
The Holtzman decision remains controversial and subject to criticism. For example, The Restatement (Third) of the Law Governing Lawyers (2001) (Restatement) cites Holtzman among cases “in which the illegitimacy of the lawyer’s conduct is far from apparent.” Restatement, §5, cmt. [c] (commenting on catch-all provisions). In cases prior to Gentile, in contexts other than a state’s regulation of attorneys, appropriate types of “limiting construction” had persuaded the U.S. Supreme Court to reject vagueness challenges to state statutes. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); Kovacs v. Cooper, 336 U.S. 77, 85–87 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73 (1942). In Gentile, the lack of an appropriate “limiting construction” compelled the U.S. Supreme Court to declare Nevada Rule 177 unconstitutionally vague, recognizing, as noted above, that “the lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated.” Gentile, 501 U.S. at 1048.
In Holtzman, the N.Y. Court of Appeals stated that “the guiding principle must be whether a reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is proscribed.” Holtzman, 78 NY2d at 191. In the Court of Appeals’ opinion, “applying this standard,” Holtzman “was plainly on notice that her conduct in this case, involving public dissemination of a specific accusation of improper judicial conduct under the circumstances described, could be held to reflect adversely on her fitness to practice law.” Id. In effect, the Court of Appeals deemed that Holtzman “knew or should have known that such attacks are unwarranted and unprofessional, serve to bring the bench and bar into disrepute, and tend to undermine public confidence in the judicial system.” Id. The opinion did not explain how she “knew or should have known” this in light of her trial assistant’s sworn statement.
Significantly, however, before the Holtzman case, no reported New York case had invoked the Catch-all Rule to discipline a lawyer for making accusations against a judge. Indeed, the Catch-all Rule had apparently never been invoked against any speech by a lawyer. Moreover, in Justices of the Appellate Div. v. Erdmann, 33 NY2d 559, 559–60 (1973), the Court of Appeals, without any mention of the Catch-all Rule, reversed a decision of the Appellate Division that had imposed discipline on a lawyer for publicly asserting the justices of the Appellate Division were “whores who became madams,” and had obtained their jobs through bribes. In so ruling, the Court found no violation of a disciplinary rule. In short, the case against Holtzman was the first indication by a New York court that the Catch-all Rule was applicable to an attorney’s accusation against a specific judge.
The Holtzman case is troubling for other reasons. Notably, New York’s former Code of Professional Responsibility contained a specific Disciplinary Rule — DR 8-102(B) — governing the conduct that gave rise to the disciplinary proceeding against Holtzman. The Rule provided: “A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.” (Emphasis added.) Nevertheless, the Court of Appeals, while acknowledging that Holtzman did not meet the “knowledge” standard, declined to address the question of whether Holtzman had violated DR 8-102(B). Rather, it stated that Holtzman’s conduct “was properly the subject of disciplinary action under [the Catch-all Rule], and it is of no consequence that she might be charged with violating DR 8-102(B) based on the same course of conduct.” Holtzman, 78 NY2d at 192. Thus, the Court of Appeals managed to bypass the knowledge requirement of DR 8-102(B), finding it sufficient to impose discipline based on what Holtzman “should have known.” Id. at 191.
This is another contrast with Gentile. There, the U.S. Supreme Court found it significant that Gentile had studied Nevada Rule 177 prior to the press conference at issue, and determined that his comments were within the “safe harbor” provided by the rule. Gentile, 501 U.S. at 1050. Holtzman did something quite similar: She reportedly sought the advice of counsel, who studied DR 8-102(B) — the only Rule in the Code dealing with accusations against judges — and concluded that the public release of her letter to Judge McDonald — about the truth of which Holtzman was certain, and, apparently, had reason to be certain — was lawful and ethical. Holtzman v. Grievance Comm., 1991 WL 11177311 at *4–5.
Significantly, the Restatement of the Law Governing Lawyers takes a strong position that “[i]t would seem to follow from elementary principles of construction” that a Catch-all provision should not be applied to conduct permissible under a more explicit rule. Restatement, §5 Com. c citing, e.g., In re West, 805 P.2d 351, 354 (Alaska 1991) (“other conduct” adversely reflecting on fitness to practice includes only conduct not already listed under other provisions). Similarly, in In re McCarty, 162 Vt. 535, 542 (1994), the Supreme Court of Vermont reversed a Professional Conduct Board’s finding that a lawyer had violated the Catch-all Rule when he neglected a client’s legal matter and acted in an undignified manner to the client in a telephone conversation. The Court held that neglect of a client’s legal matter is covered by a specific rule, DR 6-101(A)(3), and therefore should not be sanctioned under the Catch-all Rule, and that the lawyer’s rudeness to the client “does not rise to such a level as to adversely reflect upon his fitness to practice law.” Id.
Furthermore, the Catch-all Rule is often applied cumulatively in New York — i.e., prosecuting conduct under the Catch-all Rule and, at the same time, under a more explicit Rule governing exactly the same conduct — a practice often referred to as “piling on.” See, e.g., In re Cohen, 530 NYS2d 830, 838 (1st Dept. 1988) (rejecting argument that findings of violations of both provision on prejudicial conduct and “other conduct” adversely reflecting were duplicitous); see also, Roy Simon, Simon’s New York Rules of Professional Conduct Annotated (2014 ed.) at 1894 (highlighting the practice whereby “a court first finds a violation of some other section of the Rules and then finds that the violation of the other section reflects negatively on the lawyer’s fitness as a lawyer”).
The decision in Holtzman is a perfect illustration of the abuses that can flow from the use of the Catch-all Rule. In Part 2, we will explore how the Catch-all Rule has been applied since Holtzman, and recommend that the Rule be eliminated.
Hal R. Lieberman, formerly Chief Counsel to the Departmental Disciplinary Committee (First Department), is a partner at Emery Celli Brinckerhoff & Abady LLC. He is the co-author of New York Attorney Discipline: Practice and Procedure 2015 (New York Law Journal Books/ALM Media). He also publishes a blog at http://NYLegalEthics.Attorney.
Harvey Prager is an associate* at Emery Celli Brinckerhoff & Abady LLC and a co-author of New York Attorney Discipline: Practice and Procedure 2015 (New York Law Journal Books/ALM Media). [*Mr. Prager is admitted to practice in Massachusetts and the U.S. District Court, District of Massachusetts only.]
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