New York Lawyer
October 16, 2003

Q:
I am a lawyer in New York City and a member of the New York State Bar. I also like to download music from the internet (from Napster-type websites). It has been hard to miss all of the recent publicity regarding the music industry's recent wave of lawsuits against music downloaders.

If I am ever sued for this, do I risk disbarment or any other type of sanction from the State Bar? Forgive me if this is a dumb question, as I do not remember many of the ethical rules (and I don't have the time or patience to research this issue).

Many thanks.

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A:

It�s hard to say right now whether there is a problem. I asked around a little bit and got answers ranging from very conservative cautions to, in effect, �don�t worry about it.�

Kathleen R. Mulligan Baxter, who is counsel with the New York State Bar Association, cites the relevant ethical rules (without giving a conclusion). She points out that DR 1-102(A)(3) of the Code of Professional Responsibility provides, "A lawyer or law firm shall not ... [e]ngage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer." And she also quotes Simon�s New York Code of Professional Responsibility Annotated, by Prof. Roy D. Simon Jr. of Hofstra Law School, which says: "[This rule] is not limited to misconduct in the attorney's professional capacity. A court may discipline an attorney for misconduct outside the practice of law if the misconduct shows the person to be dishonest, untrustworthy, or otherwise unfit to practice law."

A legal ethics professor at Seton Hall Law School, Howard M. Erichson, reads those guidelines as requiring extreme caution. �If you're a lawyer, you can't cheat and steal and then turn around and say you didn't violate legal ethics because it's merely private conduct,� he argues. � Lawyers are officers of the court. While lawyers are not expected to be perfect, they are expected not to disobey the law in a way that suggests dishonesty or disrespect for the law.�

Erichson points out that under New York ethics standards, law-breaking lawyers are subject to discipline under relevant rules for illegal conduct even if the conduct is not directly related to client work. He goes on: �I suppose someone might argue that stealing music does not reflect badly on the lawyer's trustworthiness, but as a lawyer, that is not a risk I would want to take. Ethically, it is important to distinguish this sort of unlawful and dishonest conduct from genuine civil disobedience, in which a lawyer knowingly and openly disobeys an unjust law in an attempt to change the law. The lawyer engaged in civil disobedience must be prepared to accept the consequences of the action, but ethically stands on very different footing from petty thieves like the music-stealer.�

But it�s not all bad news. Some say it�s probably not a problem. Prof. Stephen Gillers, a Vice Dean and Professor of Law at New York University School of Law, is more sanguine. �I doubt that anyone who downloaded music for private enjoyment will face discipline or, if he or she does, that the sanction would be more severe than a private admonition,� he weighs in. �This sort of thing is generally left to the civil courts and properly so. I'm assuming, though, that the lawyer merely downloaded music for his or her private use and did not maintain a website where others could exchange music or profit financially from copyright violation.�

Sincerely,
Holly English
Principal Consultant, Values at Work