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RPC 8.4 and the Appearance of Impropriety in Retainer Fees and Politics

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RPC 8.4 and the Appearance of Impropriety in Retainer Fees and Politics Oklahoma Law Review Volume 72 Number 4 2020 A Former Senator’s Guide to Professional Responsibility: RPC 8.4 and the Appearance of Impropriety in Retainer Fees and Politics Michael S. Morgan Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Michael S. Morgan, A Former Senator’s Guide to Professional Responsibility: RPC 8.4 and the Appearance of Impropriety in Retainer Fees and Politics, 72 Oᴋʟᴀ. L. Rᴇᴠ. 903 (2020). This Essay is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. A FORMER SENATOR’S GUIDE TO PROFESSIONAL RESPONSIBILITY: RPC 8.4 AND THE APPEARANCE OF IMPROPRIETY IN RETAINER FEES AND POLITICS MICHAEL S. MORGAN Lawyers too frequently find themselves on the wrong end of a joke. In fact, if you Google “lawyer jokes,” you can spend the better part of an afternoon laughing, cringing, and wondering how a profession revered throughout history is so commonly cast in a negative light. Naturally, attorneys themselves have the hardest time reconciling this deleterious perception. They spend years studying the law, learning the rules of ethics, and cultivating a passion for justice, only to watch with disgust as their colleagues invent new ways to betray the public’s trust. To address the public’s perception of lawyers, the American Bar Association (ABA) has worked to equip law students with the skills they need to make the right decision when ethical dilemmas inevitably arise. To that end, all ABA accredited law schools are required to offer “one course of at least two credit hours in professional responsibility that includes substantial instruction in rules of professional conduct, and the values and responsibilities of the legal profession and its members.”1 The ABA’s Center for Professional Responsibility continues this mandate well beyond law school.2 It provides a forum for scholars, legal commentators, and practitioners to interpret the professional responsibility standards and address the grey areas in the conduct rules.3 But the ethical decision-making process rarely occurs in a vacuum. The most difficult decisions in an attorney’s professional career often present themselves when he or she is least suspecting. For all the ABA does to develop a thorough, well-rounded curriculum for the nation’s law schools, it does not prepare students for the invisible noose of client management. Michael S. Morgan is a former legal practitioner and Oklahoma State Senator who was elected as President Pro Tempore of the Oklahoma Senate in March 2005. Mr. Morgan currently resides in Stillwater, Oklahoma and works in the energy industry in a non-legal capacity. 1. AM. BAR ASS’N, STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS 2019–2020, at 16 (2020). 2. See Center for Professional Responsibility: Resources, AM. B. ASS’N, https://www. americanbar.org/groups/professional_responsibility/resources/ (last visited Apr. 18, 2020). 3. See id. 903 Published by University of Oklahoma College of Law Digital Commons, 2020 904 OKLAHOMA LAW REVIEW [Vol. 72:903 I have spent the better part of the last decade playing the same scene over and over again in my mind: The year is 2007. I am the President Pro Tempore of the Oklahoma State Senate.4 For the first time in the history of the state, the Senate is locked in a 24-24 tie between Republicans and Democrats.5 It is an interesting time to be in the legislative “corner office” practicing law and working to enact good public policy.6 Little do I know that my life is about to change forever. My phone rings—the caller is a constituent from Perkins, Oklahoma, which is a community in my Senate District. This particular constituent was a significant supporter in my political endeavors, so of course, I answer. The conversation is rather typical. He wants to introduce me to a potential business associate of his: Sam Crosby, a gentleman who needed advice on how to deal with the Oklahoma State Department of Health regarding the development of an assisted living facility in Perkins. This seems reasonable 4. Mike Morgan, OKLA. SENATE, https://oksenate.gov/education/senate-artwork/mike- morgan (last visited Apr. 20, 2020). The President Pro Tempore of the Oklahoma State Senate (also called the “Pro Tem”) is elected by the members of the Senate. He or she serves as the Senate’s presiding officer and has the responsibility of appointing the chair, the vice- chair, the majority caucus members of all Senate committees, and the Senate members of all conference committees. The Pro Tem is the chief executive officer of the Senate and has responsibility for the Senate’s more than 125 full-time employees. By law, the Pro Tem is second in line of succession to the Governor, and often serves in that position when both the Governor and Lt. Governor are out of state. In addition, he or she heads the majority party of the Legislature’s upper house. As such, the Pro Tem is the leader of the majority party caucus and has many duties in the political arena, including fundraising, recruiting candidates, and campaigning. 5. “Democrats had controlled the Senate since statehood until the 2006 elections, when Republican gains created a 24-24 tie. As part of a power-sharing agreement adopted in January, Senator Mike Morgan (D-Stillwater) and [Senator Glenn] Coffee (R-Oklahoma City) were elected by senators to jointly run the Legislature’s upper chamber.” Republican to Hold Senate President Pro Tem Office for First Time in History, OKLA. SENATE (June 29, 2007, 1:33 AM), https://oksenate.gov/press-releases/republican-hold-senate-president-pro- tem-office-first-time-history. This period was marked by a historic power-sharing agreement between the parties that enabled the gridlocked Senate to enact positive legislation without undue political delay. 6. See Full- and Part-Time Legislatures, NAT’L CONF. ST. LEGISLATURES (June 14, 2017), https://www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures. aspx (“Although their income from legislative work is greater than that in the Gold states, it’s usually not enough to allow them to make a living without having other sources of income.”). In Oklahoma, members of the House of Representative and Senate work the equivalent of a part-time job. Id. Consequently, most have second jobs to supplement the relatively low income. https://digitalcommons.law.ou.edu/olr/vol72/iss4/5 2020] RPC 8.4 & THE APPEARANCE OF IMPROPRIETY 905 enough, so I agree to meet them for coffee on a Saturday morning in my constituent’s office in Perkins. While the call was typical, the meeting certainly was not. For the first time, on that fateful Saturday morning, I met the man whose testimony would later condemn me to eighteen months confinement in federal prison on a bribery conviction. They say you can boil a frog just by slowly turning up the heat. It wasn’t until I became the frog that I finally appreciated what that meant. Now, I am on a mission to educate members of our profession—especially new attorneys—in the area of client management and legal ethics. To that end, this Essay reviews the law governing lawyers’ conduct and explains how a fast-paced work environment (whether legal or otherwise) exposes attorneys to potential allegations of misconduct should they fail to diligently manage their clients. Part I contains an overview of the relevant conduct rules and specifically highlights the development of the “appearance of impropriety” standard. Part II analyzes the operation of these rules in the context of the events leading to my federal bribery conviction. Part III concludes by providing examples of engagement letters and invoices that likely would have kept me out of prison had I displayed enough discipline to use them with consistency and focus fifteen years ago. I. The Conduct Rules A. Rule 8.4 and the Appearance of Impropriety The Oklahoma Rules of Professional Conduct enumerate certain categories of behavior that constitute general misconduct. According to Rule 8.4, it is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; Published by University of Oklahoma College of Law Digital Commons, 2020 906 OKLAHOMA LAW REVIEW [Vol. 72:903 (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.7 The comments to the rule state that “[a]lthough a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”8 As it turns out, most crimes are relevant to law practice—especially those involving breach of trust or dishonesty.9 For this reason, the Oklahoma Supreme Court routinely invokes Rule 8.4 as a catchall for attorney misconduct.10 The court has explained that its role is to “safeguard the interests of the public, the courts, and the legal profession,”11 and Rule 8.4 gives it the flexibility to properly discipline attorneys for conduct that does not fit neatly within a particular rule.
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