Can a lawyer be disciplined for committing a crime, like illegally re-importing prescription drugs, that has nothing to do with practicing law?

Plain-English summary

The inquiring lawyer described United States citizens traveling to Canada to buy prescription drugs that were manufactured in the United States and exported to Canada, conduct that violates 21 U.S.C. § 381(d)(1). The lawyer and others he advised were considering joining them, and worried this might violate the Rules of Professional Conduct. He asked two questions: whether such purchases violate the RPCs, and whether a lawyer can face discipline for a law violation that is not itself an RPC violation.

The committee first noted that no lawyer may counsel anyone to commit a criminal act under RPC 1.2(d). It then explained that RPC 8.4(b) makes it misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness, but that not all criminal acts qualify: only those bearing on those characteristics. Drawing on In re Discipline of Huddleston and In re Discipline of Curran, the committee said conduct reflecting on fitness need not occur while practicing law, but there must be a nexus between the conduct and characteristics relevant to law practice. It added that RPC 8.4(i) makes it a violation to commit any act showing disregard for the law.

The committee said that, separate from any RPC violation, an actual conviction for a "serious crime" brings an automatic suspension under RLD 3.1, and that any felony is a serious crime. Because re-importing drugs with intent to defraud or mislead, or after a prior conviction, or with knowledge that it is a crime, could be a felony, the committee concluded that re-importation may or may not be an ethical violation, but it could lead to suspension, an automatic disciplinary proceeding, and possibly independent grounds for sanction.

Currency note

This opinion was issued in 2004, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or disciplinary procedure mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee did not give a flat yes or no on whether buying re-imported drugs is an ethics violation. It set out the test: a crime is professional misconduct under RPC 8.4(b) only when it reflects adversely on honesty, trustworthiness, or fitness, with a nexus to characteristics relevant to law practice, and RPC 8.4(i) reaches conduct showing disregard for the law. The committee treated the discipline consequence as a separate track: a conviction for a felony is a "serious crime" that triggers automatic suspension under RLD 3.1, regardless of whether the underlying act independently breaches an RPC.

Common questions

Q: Does committing a crime automatically violate the Rules of Professional Conduct?

A: The committee said no. Under RPC 8.4(b), a criminal act is misconduct only if it reflects adversely on the lawyer's honesty, trustworthiness, or fitness; not every crime qualifies.

Q: Can a lawyer be disciplined for a law violation that is not an RPC violation?

A: The committee said yes in effect: an actual conviction for a "serious crime" (any felony) triggers automatic suspension under RLD 3.1, and RPC 8.4(i) separately reaches acts showing disregard for the law.

Q: When would re-importing drugs from Canada be a felony?

A: The committee said re-importation with intent to defraud or mislead, after a prior conviction for violating the Federal Food, Drug, and Cosmetic Act, or with knowledge that it is a crime, would be a felony.

Q: What did the committee say about advising others to do this?

A: The committee said no lawyer, including those on the committee, may counsel anyone to commit a criminal act, citing RPC 1.2(d).

Background and rules framework

The opinion interprets RPC 8.4(b) (Model Rule 8.4(b), criminal acts that reflect adversely on a lawyer's honesty, trustworthiness, or fitness) and RPC 8.4(i) (a Washington provision reaching acts that show disregard for the law), and notes RPC 1.2(d) (Model Rule 1.2(d), not counseling or assisting a client in criminal conduct). It applies the Washington Supreme Court's fitness-nexus analysis from the cited discipline cases and connects the question to the discipline rules (RLD 3.1) that impose automatic suspension on conviction of a serious crime. The analysis turns on whether the crime reflects on fitness and, separately, on whether a conviction triggers the discipline rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / Washington RPC 8.4(b) (criminal act reflecting adversely on honesty, trustworthiness, or fitness)
• Washington RPC 8.4(i) (committing an act showing disregard for the law)
• Model Rule 1.2 / Washington RPC 1.2(d) (not counseling anyone to commit a criminal act)

Statutes:

• 21 U.S.C. § 381(d)(1) (federal prohibition on re-importing exported prescription drugs)

Cases:

• In re Discipline of Huddleston, 137 Wn.2d 560, 974 P.2d 325 (1999), conduct reflecting on fitness need not occur while practicing law
• In re Discipline of Curran, 115 Wn.2d 747, 801 P.2d 962 (1990), a nexus is required between the conduct and characteristics relevant to law practice; lawyer disciplined for vehicular homicide reflecting disregard for the rule of law

Other authority:

• RLD 3.1, 3.1(i) (Rules for Lawyer Discipline; automatic suspension on conviction of a "serious crime"; any felony is a serious crime)

See also

• ABA Formal Op. 491: Counseling or Assisting Crime or Fraud
• ABA Formal Op. 92-363: Threats of Criminal Prosecution

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1320

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2076
Year Issued: 2004
RPC(s): RPC 1.2(d), 3.1., 8.4(b), 21 U.S.C. Section 381(d)(1)
Subject: Lawyer wishes to obtain prescription drugs in Canada and return with them to the United States

The inquirer asks the committee to opine about an ethical dilemma based on the following:

Facts United States citizens are traveling to Canada to purchase prescription drugs that were manufactured in the United States and imported to Canada. This conduct violates 21 U.S.C. Section 381(d)(1). The inquiring lawyer and other lawyers he advises are considering joining those citizens. They are concerned that this conduct might put them in violation of the Rules of Professional Conduct. Currently, customs officials are taking a tolerant approach to such conduct, but the inquiring lawyer is concerned that these officials might change that policy.

Question 1. Is it a violation of the Rules of Professional Conduct for a lawyer to purchase prescription drugs that are manufactured in the United States and imported to Canada?

2. Can a lawyer be subjected to disciplinary proceedings for a violation of the law which does not constitute a violation of the Rules of Professional Conduct?

Analysis No lawyer, including those on the Committee, may counsel anyone to commit a criminal act. RPC 1.2(d).

RPC 8.4(b) provides that “(i)t is professional misconduct for a lawyer to. . . (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Violation of 21 U.S.C. Section 381(d)(1) is a criminal act. However, not all criminal acts violate of RPC 8.4(b); only those that reflect adversely on the lawyer’s honesty, trustworthiness or fitness.

In Discipline of Huddleston, 137 Wn.2d 560, 974 P.2d 325 (1999), the Washington Supreme Court made it clear that “conduct reflecting adversely on the lawyer’s fitness” need not necessarily be conduct undertaken while engaged in practicing law. In assessing what conduct would qualify under the rule, the Court, in another case, has found that “conduct reflecting adversely on a lawyer’s fitness to practice law can only be found when there is some nexus between the lawyer’s conduct and those characteristics relevant to law practice.” In Discipline of Curran, 115 Wn.2d 747, 768, 801 P.2d 962 (1990). RPC 8.4(i) also makes it an ethical violation to commit any act that shows disregard for the law.

While finding that Curran had not violated RPC 8.4(b), the Supreme Court did discipline him for his vehicular homicide which it found to reflect a “disregard for the rule of law.” In Discipline of Curran, 115 Wn.2d at 763.

In addition, any actual conviction for any “serious crime” brings an automatic suspension of a lawyer from the practice of law. RLD 3.1. Any felony is a “serious crime.” RLD 3.1(i) Re-importing drugs from Canada with intent to defraud or mislead or after a prior conviction for violating the Federal Food, Drug, and Cosmetic Act would be a felony, as would re-importation with knowledge that it is a crime to do so. Thus, while re-importing drugs may or may not be an ethical violation, it could lead to a suspension from the practice of law and to an automatic disciplinary proceeding and may be independent grounds for a disciplinary sanction.