New Jersey—along with most states and the District of Columbia—has adopted Rule 8.4(c) of the ABA Model Rules of Professional Conduct. As Rule 8.4(c) states, “it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In 1974, in the wake of the Watergate scandal, the ABA Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 336, which explicitly recognized the applicability of that rule to conduct outside the practice of law. Two recent public controversies have renewed interest in the appropriate scope of Rule 8.4(c) and, in particular, whether it is fair to impose discipline when misconduct untethered to legal work occurs in the political arena.
The President’s Counselor
Kellyanne Conway was President Trump’s campaign manager and the first Republican woman to serve in that role. She is a lawyer and a member of the D.C. bar, although presently on the inactive list. She is without question a politically polarizing figure. During the presidential campaign, she was regarded as an extremely effective advocate, showing a preternatural ability to pivot from direct questions about Mr. Trump to responses offering negative information about his adversary. Some would say that she mastered the art of the non sequitur with a straight face and without apology. Others have observed, as Wall Street Journal columnist Peggy Noonan has written, that she was a “target in a media matrix dominated by ideological views that are not conservative,” and to some she is regarded as a heroine.
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