An important new law review article and two recent lawyer discipline cases—perplexing when read side by side—present a good opportunity to write about mental state requirements in the Rules of Professional Conduct. The article is Nancy J. Moore, Mens Rea Standards in Lawyer Discipline Codes, 23 Geo. J. Legal Ethics 1 (Winter 2010); the recent cases are Matter of Rogers, 928 N.E.2d 210 (Ind. June 21, 2010) and Matter of Broderick, 929 N.E.2d 199 (Ind. June 25, 2010).

The mental state requirements found in the Indiana Rules of Professional Conduct run the gamut from “knowing” (an “intentional” mental state is not mentioned) through “reckless” (which is rarely mentioned) and “negligent” (usually stated in terms of reasonableness or unreasonableness) to no explicit mention of a mental state requirement. The primary focus of Prof. Moore’s article is the meaning of failure of certain rules to mention state-of-mind.  What does this mean?  Should there be a mental state requirement imposed by judicial construction, and if so, what mental state?  Or should they be viewed as strict liability rules?

Some important rules have no mental state requirement. For example, Rule 1.6 on client confidentiality prohibits a lawyer from revealing information related to the representation of a client (unless an exception is present).  What if a lawyer’s revelation of confidential client information is neither negligent nor knowing, but based on an innocent mistake?  And the conflict of interest rules, 1.7 (concurrent conflicts) and 1.9 (former client conflicts), prohibit representations burdened by un-consented conflicts of interest.  Are those strict liability offenses?

Prof. Moore contrasts the rich history of concern about mental state requirements in the criminal law with the “primitive” nature of discussions on the topic in lawyer discipline. She ends up concluding that in most instances where a rule does not contain a mental state requirement, it should not be presumed that a strict liability standard was intended.  In fact, she suggests that for rules designed to protect clients, no mention of mental state should be read to require a minimal showing of negligence; and for rules designed to protect courts or third parties, a standard of “knowledge” should fill the gap.

Strict liability should be a disfavored mental state requirement that should be reserved for use “when there will be great difficulty or expense in proving a bad mental state, when it is most desirable to deter conduct that is particularly harmful to the public, and when the nature of the rule is such that its violation is unlikely to result in the moral condemnation implicit in a disciplinary violation.” Moore at 26.  Not that there is consensus on this topic.  Prof. Moore points out that Prof. Stephen Gillers of NYU School of Law would routinely find strict liability in the rules that have no state-of-mind requirement; whereas Prof. Geoffrey Hazard and William Hodes in their Law of Lawyering treatise appear to advocate for a “knowing” standard.

Meanwhile, lawyers have little guidance. Perhaps the point is largely moot because lawyer regulators will normally focus resources on cases where rule violations are accompanied by some culpable mental state—even it is mere negligence.

Of course, more of the Rules of Professional Conduct contain a mental state requirement than don’t. Often, it is “knowingly.”  Rule 1.0(f) defines this state-of-mind as denoting “actual knowledge of the fact in question.  A person’s knowledge may be inferred from the circumstances.”

This is where the two recent cases come in. In Rogers, the lawyer cited a Court of Appeals decision to a trial court as authority to support suppression of evidence in a criminal case.  The case cited was not good law—it had been vacated on transfer and supplanted by the Supreme Court’s own opinion that effectively reversed the court of appeals.  The lawyer was charged with violating Rule 3.3(a)(1), which states: “A lawyer shall not knowingly make a false statement of fact or law to a tribunal….”  The lawyer prevailed on standard of proof grounds with the Court accepting the hearing officer’s conclusion that the Disciplinary Commission failed to prove by clear and convincing evidence that the respondent lawyer was actually aware that he had cited bad law.

Contrast this with Broderick, decided just four days after Rogers.  In that case, the respondent lawyer represented his son in connection with an Indiana alcohol-related criminal offense.  In his capacity as a lawyer, he signed a deferral agreement representing that his son had no prior arrests.  This was false.  The son had been arrested two years earlier in Florida, and the father knew about it because he had assisted his son in getting a Florida deferral.  The Commission charged the respondent with violating Rule 4.1(a), which has a parallel construction to Rule 3.3(a)(1) and shares the same mental state requirement: “In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person [the prosecutor].”  It was undisputed and the hearing officer found that the respondent was not aware of the statement concerning no prior arrests because he did not read the agreement before signing it.  Consequently, the hearing officer recommended that the Court find against the Commission on its Rule 4.1(a) charge.  (The hearing officer did recommend that the Court find the respondent acted prejudicially to the administration of justice in violation of Rule 8.4(c)).

On review, the Supreme Court accepted the Commission’s argument that “an intentional choice to remain ignorant of a likely falsehood in a document can rise to a level of a ‘knowing’ misrepresentation.” Concluding that the respondent violated Rule 4.1(a), the Court went on: “Respondent, an experienced lawyer who was well aware of the relevance of a defendant’s prior record in a criminal case and who knew his son’s Florida arrest had not been disclosed, chose not to read a short document containing the essential terms of his son’s probation.  Respondent therefore knew that he didn’t know what representations he was making.  He was responsible for any errors.”

Broderick was decided in brief-order format and, accordingly, the Court’s analysis not fully developed.  But it is a significant case.  It represents only the second lawyer discipline case where the Court accepted something less than actual knowledge as sufficient to satisfy that standard.  The only previous case is Matter of Wagner, 744 N.E.2d 418 (Ind. 2001).  The respondent in that case had been counsel for a bankruptcy creditor who held a judgment against the debtors.  The debtors were discharged in bankruptcy and the creditor’s judgment lien was avoided.  Some time after their bankruptcy discharge, the debtors contacted the respondent at the insistence of their lender to release the judgment lien of record so they could refinance their home.  Without checking his file, which was in storage, the respondent advised, contrary to fact, that the judgment lien had “apparently” not been avoided and that the creditor would release the judgment for $1,000, which the debtors paid.  The hearing officer found that the respondent’s use of the qualifying word “apparently” reflected a lack of total certainty on the respondent’s part that the lien had not been avoided.

On review, citing a Nebraska case holding that “knowing” includes careless and recklessly negligent conduct, but without explicitly adopting it, the Court held that the respondent had knowledge that his statement about avoidance of the lien was false or “at least knowledge that he did not have any basis to represent that the lien was ‘apparently’ still valid.” Id. at 421.  The Court was clearly dubious that the respondent had a sincere lack of memory since he had personally prepared a bankruptcy court objection to avoidance of the lien and later filed a motion to withdraw the objection.

Both Broderick and Wagner get at a similar point—that under certain circumstances a “knowing” state of mind can be proved with something less than actual knowledge. Wagner goes surprisingly far in suggesting that a false statement made without verifying its accuracy from available records can be knowingly false.  However, because the Court alternatively held that the respondent actually knew that the lien had been avoided, perhaps it stands more for the proposition that “knowing” is something less than “total certainty.”

Broderick is more definitive than Wagner because the Court’s acceptance of something other than proof of actual knowledge was necessary for it to reach its result.  In it, the Court adopts in a lawyer discipline case something akin to the “willful blindness” or “deliberate avoidance” doctrine—a doctrine that has been more fully developed in the criminal law.  While the doctrine does not have a uniform definition, it essentially captures the idea that one cannot avoid accountability for having knowledge by maintaining a posture of studied ignorance of facts that have a high probability of being false.  In criminal cases, sometimes called the “ostrich instruction,” the elements are (1) a strong suspicion of wrongdoing, couple with (2) indifference to the truth.  See, e.g., U.S. v. Garcia, 580 F.3d 528, 537 (7th Cir. 2009).

While unique in its use Indiana lawyer discipline case, Broderick presents a fairly straight-forward application of the willful blindness doctrine.  As the Court pointed out, an experienced lawyer would reasonably expect a deferral agreement to account for prior criminal involvement, and perhaps the respondent did not read it in order maintain a posture of ignorance of any representations in the agreement that were inconsistent with facts the lawyer knew to be true.  At a policy level, the willful blindness doctrine eliminates incentives to intentionally avoid knowledge of inconvenient facts.  And with the prospect of lawyer discipline, it creates active disincentives

It is a real challenge to align the results of Rogers and Broderick.  Like Broderick, the respondent in Rogers was very experienced.  He had been practicing since 1959.  I think most lawyers would agree that the duties to read a document to be signed on a client’s behalf and to check that appellate authority has not been directly overruled before citing it to a court are similarly compelling.  Maybe it comes down to assessing the odds.  The probability of a criminal deferral agreement including representations about past contacts with the criminal justice system is high.  The probability of a decision of the court of appeals being vacated on transfer and supplanted by a Supreme Court opinion is statistically quite low.  Another point of difference is that in Broderick, the Disciplinary Commission affirmatively sought Supreme Court review of the hearing officer’s decision finding that it failed to prove knowing conduct.  In Rogers, the Commission seems to have accepted the hearing officer’s factual finding that the lawyer did not actually know that his authority was bad and did not seek review of that finding.

However one squares Broderick with Rogers, this much is clear: Broderick is an important case signaling to the bar that avoidance of inconvenient, adverse facts will not provide a Get-Out-of-Discipline Free Card.