ABA Model Rule 8.4(g) in the News

In the News:
ABA Model Rule 8.4(g) and the States


June 2019

South Dakota Supreme Court to Consider Proposed Misconduct Rule
On June 21, the State Bar of South Dakota voted to send the Rule 8.4(g) proposal to the South Dakota Supreme Court. CLS is hopeful there will be a comment period during which the South Dakota Supreme Court will accept comments from interested persons regarding the rule.
 

Kim Colby Featured on The Federalist Society Blog
On June 17, Center Director Kim Colby published an article on The Federalist Society blog discussing why the members of the South Dakota Bar should vote against the proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.


New Maine Rule of Professional Conduct Rule 8.4(g) not ABA Model Rule 8.4(g)
Professor Alberto Bernabe of The John Marshall Law School published an article in which he explains the differences between ABA Model Rule 8.4(g) and the recently adopted Maine Rule of Professional Conduct Rule 8.4(g).


ABA Model Rule 8.4(g) Proponent Shows How the Model Rule Chills Protected Speech
Professor Josh Blackman, an Associate Professor of Law at the South Texas College of Law in Houston who has commented extensively on the Rule 8.4(g) debates, published an article in which he explains how Professor Stephen Gillers of NYU, a proponent of ABA Model Rule 8.4(g), actually demonstrated how Model Rule 8.4(g) chills protected speech.


Colorado Supreme Court to Hold Public Hearing
The Colorado Supreme Court will conduct a public hearing on proposed changes to Rule 8.4 of the Colorado Rules of Professional Conduct on Wednesday, September 18, 2019, at 3:30 p.m. in the Colorado Supreme Court Courtroom, 2 East 14th Avenue, Denver, Colorado. Anyone who wishes to speak at the hearing should notify the Clerk of Court, Cheryl Stevens, no later than 4:00 p.m. on Friday, September 13, 2019, by email at cheryl.stevens@judicial.state.co.us or by telephone 720-625-5150. The public comment period previously held on this proposed rule change ended on May 15, 2019. All comments received during the comment period are available here.
 

State Bar of South Dakota to Vote on Rule 8.4(g) Proposal 
The State Bar of South Dakota, in its June 2019 Newsletter, which focused on the upcoming State Bar Convention, announced the 2019 Annual Meeting Proposals. Included in those proposals is a proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.

Members of the South Dakota Bar will vote on the Bar Commission proposal at the 2019 South Dakota Bar Annual Meeting next week (June 19-21) in Rapid City, South Dakota. Specifically, the voting will take place on June 21, 2019 during the State Bar’s business meeting. The business meeting will be held in the Rushmore Room of the Ramkota Hotel and starts at 8:15 am Mountain Time. Voting will take place sometime after 8:30 AM and hopefully before 9:45 AM. If comments take more time than expected voting may take place after that time.

The proposed new subsection, which is a modified version of ABA Model Rule 8.4(g), would make it professional misconduct for a South Dakota lawyer to:

(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a peremptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

May 2019

Alaska Bar Association Opens Comment Period
On May 31, the Alaska Bar Association notified Bar members via email that the Committee on the Rules of Professional Conduct ("Committee") of the Alaska Bar Association is proposing an amendment to Alaska Rules of Professional Conduct Rule 8.4. Specifically, the Committee is proposing to add new subsection (f), which reads as follows:

          It is professional misconduct for a lawyer to: 

          (f) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race,   
          sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status
          while:

              (1) representing clients,
              (2) interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law, 
              (3) operating or managing a law firm or law practice, or
              (4) participating in bar association, business or social activities in connection with the practice of law.

          This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with
          Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Alaska Bar Association is accepting comments on the proposed amendment. Comments should be submitted to the Bar by email to Bar Counsel at page@alaskabar.org, by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, AK 99501, or by calling Bar Counsel at (907) 272-7469. Comments should be received no later than August 15, 2019.
 

CLS Files Comment Letter in New Hampshire
On May 29, CLS filed a comment letter with the New Hampshire Supreme Court on its new proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The CLS comment letter notes the significant differences between the New Hampshire Supreme Court's May 2019 proposal and ABA Model Rule 8.4(g), as, unlike previous proposals considered by the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, the May 2019 proposal is not a version of ABA Model Rule 8.4(g). The CLS comment letter also notes concerns about the May 2019 proposal and provides suggestions on how the New Hampshire Supreme Court could further improve the proposed Rule 8.4 amendment.
 

Kim Colby Featured on The Federalist Society Blog
Also on May 29, Center Director Kim Colby published an article on The Federalist Society blog briefly discussing the newest comment period in New Hampshire and why the most recent New Hampshire proposal is not ABA Model Rule 8.4(g).
 

New Hampshire Rules of Professional Conduct Rule 8.4(g) Comments Due May 31
The New Hampshire Supreme Court issued an Order on May 17, opening a short public comment period until May 31 on a new proposal to amend New Hampshire Rules of Professional Conduct Rule 8.4. Unlike previous proposals considered by either the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, this newest proposal is not a version of ABA Model Rule 8.4(g). This is welcome news. Comments regarding the May 2019 proposal should be sent to rulescomment@courts.state.nh.us. CLS will file a comment letter shortly. In the meantime, here is the comment letter CLS filed on a previous version of the proposed rule.
 

Maine Supreme Judicial Court Adopts Amendment to Misconduct Rule
On May 13, the State of Maine Supreme Judicial Court issued an Order adopting amendments to the Maine Rules of Professional Conduct Rule 8.4. The amendment added new section (g) to the misconduct rule and reads as follows:

(g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonable should know is harassment, or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.

(1) “Discrimination” as used in this Rule means conduct or communication that as lawyer intends or reasonable should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in the Rule; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.

(2) “Harassment” as used in this Rule means derogatory or demeaning conduct or communication and includes unwelcome sexual advances, or other conduct or communication unwelcome due to its implicit or explicit sexual content.

(3) “Related to the practice of law” as used in the Rule means occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; or operating or managing a law firm or law practice.

(4) Declining representation, limiting one’s practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g).

While new section (g) of the Maine Rules of Professional Conduct Rule 8.4 may, at first glance, appear to be ABA Model Rule 8.4(g), it is, in fact, not ABA Model Rule 8.4(g). Indeed, Maine’s Rule 8.4(g) is narrower than ABA Model Rule 8.4(g). First, Maine’s Rule 8.4(g) does not include “marital status” and “socioeconomic status” in the list of types of prohibited discrimination. Second, Maine’s Rule 8.4(g)(1) provides a more definitive explanation of what constitutes “discrimination” compared to the ABA model rule, limiting it to “conduct or communication a lawyer knows or reasonably should know manifests an intent to treat a person as inferior …; disregard relevant considerations of individual characteristics or merit …; or cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.” ABA Model Rule 8.4(g), on the other hand, broadly defines “discrimination” as “harmful verbal or physical conduct that manifests bias or prejudice towards others.” Third, Maine’s Rule 8.4(g) limits conduct or communication “related to the practice of law” as that “occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; or operating or managing a law firm or law practice.” ABA Model Rule 8.4(g) is broader in that it also includes “participating in bar association, business or social activities in connection with the practice of law” in its definition of “related to the practice of law.”
 

CLS Submits Comments to Utah Supreme Court
The Utah Supreme Court is again considering amending its current misconduct rule, as well as considering a coordinating amendment to its Standards of Professionalism and Civility, USB14-0301. CLS filed its comments to both proposals on May 3.
 

Kim Colby Featured on The Federalist Society Blog
Also on May 3, Center Director Kim Colby published an article on The Federalist Society blog briefly explaining why Utah should not adopt either of the proposed amendments.

April 2019

Reminder - Comments on Proposed Changes to New Hampshire Rules of Professional Conduct Due April 12, 2019 
Comments are due to the New Hampshire Supreme Court by April 12. Here are two quick ways to comment: (1) signing and emailing to rulescomment@courts.state.nh.us the attached NH Bar comment letterwhich provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing New Hampshire Rule 8.4 for the reasons given by Christian Legal Society in its April 11, 2019 comment letter
 

CLS Files Comment Letter with New Hampshire Supreme Court
On April 11, CLS filed its comment letter opposing adoption of the rule change proposed by the New Hampshire Supreme Court. CLS also prepared a short background document on the proposal, giving reasons why the New Hampshire Supreme Court should not adopt the proposal.
 

D.C. Bar Extends Comment Period 
The D.C. Bar Rules of Professional Conduct Review Committee unexpectedly extended the public comment period on its proposal to amend D.C. Rule 9.1 to include ABA Model Rule 8.4(g). Comments may now be sent to ethics@dcbar.org by close of business Friday, April 19, 2019.
 

Reminder - Comments on Proposed Changes to D.C. Rules of Professional Conduct Due April 5, 2019
Comments are due by April 5. Here are two quick ways to comment: (1) signing and emailing to ethics@dcbar.org the attached D.C. Bar comment letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing D.C. Rule 9.1 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter dated March 11, 2019.
 

Center Director Kim Colby Featured on The Federalist Society Blog
On April 5, Center Director Kim Colby published an article on The Federalist Society blog briefly explaining why D.C. should not adopt ABA Model Rule 8.4(g).


Utah Supreme Court Again Considering Changes to Utah Misconduct Rule 8.4
The Utah Supreme Court is once again looking into amendments to its current misconduct rule. The Utah Supreme Court is accepting online comments on this new amendment to Utah Rules of Professional Conduct Rule 8.4 through May 5, 2019. Comments must be submitted online and can be submitted here. The Utah Supreme Court is also considering a coordinating amendment to its Standards of Professionalism and Civility, USB14-0301, and is accepting comments on this proposal as well. Comments are also due May 5, 2019, and may be submitted here.


March 2019

Center Director Kim Colby Featured on The Federalist Society Blog
On March 12, Center Director Kim Colby published an article on The Federalist Society blog analyzing the misconduct rule proposed by the D.C. Bar Rules of Professional Conduct Review Committee and discussing the reasons why D.C. should not adopt it.


CLS Submits Comment Letter to D.C. Bar Rules of Professional Conduct Review Committee
In response to the public comment period being held by the D.C. Bar Rules of Professional Conduct Review Committee, CLS, on March 11, submitted a comment letter opposing the proposal to amend D.C. Rules of Professional Conduct Rule 9.1 to include ABA Model Rule 8.4(g). CLS also prepared a short background document for D.C. attorneys on why the D.C. Rules of Professional Conduct Review Committee should reject ABA Model Rule 8.4(g).


Montana Supreme Court Chooses Not to Adopt ABA Model Rule 8.4(g)
On March 1, the State Bar of Montana, along with its Ethics Committee, petitioned the Supreme Court of Montana to revise 18 rules of the Montana Rules of Professional Conduct. In its Memorandum in Support of Petition, the State Bar of Montana mentioned in a footnote (p.3, n.2) that Montana Rule of Professional Conduct Rule 8.4(g) was not included in the review as it had "earlier been the subject of Court attention ... and the Supreme Court chose not to adopt the ABA’s Model Rule 8.4(g)." 


February 2019

Professor Michael McGinniss Examines ABA Model Rule 8.4(g) Controversy
Professor Michael McGinniss of the University of North Dakota School of Law published an article entitled Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession. The article provides a thorough analysis of the controversy surrounding ABA Model Rule 8.4(g). 


Colorado Supreme Court Opens Comment Period
The Colorado Supreme Court is seeking written comments from the public on proposed amendments to Rule 8.4 of the Colorado Rules of Professional Conduct. The proposed amendment in Colorado is different from the other 8.4(g) proposals to date in that the Colorado proposed amendment seeks to specifically address sexual harassment in connection with a lawyer's professional activities, though professional activities are not limited to those in the client-lawyer relationship.

Written comments should be submitted to Cheryl Stevens, Clerk of the Supreme Court. Comments may be mailed or delivered to 2 East 14th Avenue, Denver, CO 80203 or emailed to cheryl.stevens@judicial.state.co.us and must be received no later than 5:00 p.m. on May 15, 2019.


New Hampshire Supreme Court Accepting Comments
On February 11, the Supreme Court of New Hampshire issued an Order regarding the amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct as proposed by the New Hampshire Supreme Court Advisory Committee on Rules ("Committee"). Pursuant to the order, the New Hampshire Supreme Court is accepting written comments on the proposed amendment. Also pursuant to the order, the New Hampshire Supreme Court will hold a public hearing on the proposed amendment. Individuals wishing to speak about the proposed amendment may address the court, and each individual doing so will be limited to five (5) minutes. Comments must be submitted before the close of the public hearing on April 12, 2019. The New Hampshire Supreme Court will consider all comments previously submitted to the Committee, so those comments do not need to be resubmitted. Comments may be submitted by email to rulescomment@courts.state.nh.us. In the alternative, one original and one hard copy of the comments may be mailed or hand delivered to the following address: New Hampshire Supreme Court, One Charles Doe Drive, Concord, NH 03301, Attn: Eileen Fox, Clerk of Court.


New Hampshire Advisory Committee on Rules Issues Report and Recommendation
On February 8, the New Hampshire Supreme Court Advisory Committee on Rules ("Committee") sent a report and recommendation to the New Hampshire Supreme Court. The report contained the final draft of proposed rules and rule amendments the Committee is recommending for adoption by the New Hampshire Supreme Court. Included in those recommendations is an amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The Committee voted to recommend that the New Hampshire Supreme Court consider adding a provision (g) to Rule 8.4, making it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. The Committee also voted to recommend that the New Hampshire Supreme Court hold a public hearing before the full court on the proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. 


D.C. Bar Rules of Professional Conduct Review Committee Seeking Comments on Proposed Rule Changes
On February 4, the D.C. Bar Rules of Professional Conduct Review Committee (“Committee”) announced it is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct, including D.C. Rules 8.4 (Misconduct) and 9.1 (Discrimination in Employment). Comments are due by the close of business on April 5, 2019. Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001.

In its proposal, the Committee recommended that D.C. Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, be amended to closely align with ABA Model Rule 8.4(g), which addresses discrimination and harassment in conduct related to the practice of law, but with some minor differences. The Committee also recommended an amendment to Comment [3] to D.C. Rule 8.4 that would cross reference D.C. Rule 9.1.

The Committee is requesting comment on the proposed rule amendments before submitting the proposed rule amendments to the Bar’s Board of Governors. In establishing the Committee as a standing Bar committee in 1994, the Board of Governors charged it with responsibility for the on-going review of the D.C. Rules. On its own initiative, or upon request by the Board, by members of the Bar, or by the public, the Committee examines a particular rule or rules and may make recommendations for changes to the Board of Governors. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.


September 2018

Idaho Supreme Court Rejects ABA Model Rule 8.4(g)
The Idaho Supreme Court, by a vote of 3-2, decided not to adopt a resolution that would have amended Idaho Rules of Professional Conduct Rule 8.4 to include the language of ABA Model Rule 8.4(g). The Idaho Supreme Court sent official notice of the decision to the Idaho State Bar on September 6.


CLS Files Supplemental Comments in New Hampshire 
CLS filed with the New Hampshire Supreme Court Advisory Committee on Rules supplemental comments regarding ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period but filed the supplemental comments to bring to the attention of the members of the New Hampshire Supreme Court Advisory Committee on Rules the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) ("NIFLA"), which was handed down after the comment period in New Hampshire closed. The NIFLA Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. Under the Court’s analysis in NIFLA, therefore, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech. The supplemental comments also noted the recent decision by the Arizona Supreme Court to reject a petition that would have amended the Arizona Rules of Professional Conduct to include ABA Model Rule 8.4(g).


August 2018

Arizona Supreme Court Rejects ABA Model Rule 8.4(g)
The Arizona Supreme Court, on August 30, issued an Order denying the Petition to Amend Rule 42, Ethical Rule 8.4, Rules of the Supreme Court, that would have added language adopted by the ABA, namely ABA Model Rule 8.4(g), as it applies to nondiscrimination.


Center Director Kim Colby Featured on The Federalist Society Blog
On August 24, Kim Colby published an article The Federalist Society blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) ("NIFLA") and Matal v. Tam, 137 S. Ct. 1744 (2017).


Maine Supreme Judicial Court to Hold Public Hearing
The Maine Supreme Judicial Court will be holding a public hearing to receive oral comments on a proposed amendment adding Rule 8.4(g) to the Maine Rules of Professional Conduct to prohibit harassment and discrimination. The hearing will be at 1:30 on Tuesday, October 23, 2018, in Courtroom 12 of the Cumberland County Courthouse in Portland, Maine.


CLS Files Supplemental Comments in Maine and Utah
On August 17, CLS filed with the Maine Supreme Judicial Court supplemental comments regarding Proposed Rule 8.4(g). CLS filed the supplemental comments to bring to the attention of the Maine Supreme Judicial Court Justices the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) ("NIFLA"), which was after the comment period in Maine closed. The NIFLA Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. Under the Court’s analysis in NIFLA, therefore, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech.

On the same day, CLS filed similar supplemental comments with the Utah Supreme Court regarding the proposal there to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period last year.


July 2018

Center Director Kim Colby Featured on The Federalist Society Blog 
On July 28, Kim Colby published an article on The Federalist Society blog discussing the unconstitutionality of the proposed rule that the Pennsylvania Disciplinary Board is considering. 


Pennsylvania Disciplinary Board Renews Study of ABA Model Rule 8.4(g)
After extensive review and discussion of the comments and suggestions received during the comment period from December 2016 to February 2017, the Disciplinary Board of the Pennsylvania Supreme Court determined not to move forward with the proposed amendments to Pennsylvania Rule of Professional Conduct Rule 8.4 and instead renewed its study of the issue. On July 27, 2018, CLS submitted a comment letter to the Disciplinary Board of the Supreme Court of Pennsylvania urging it not to adopt its newly Proposed Rule 8.4(g). Josh Blackman, Associate Professor at South Texas College of Law Houston, also submitted a comment letter opposing adoption of the proposed amendments.


June 2018

New Hampshire Bar Association Hosts ABA Model Rule 8.4(g) Conversation
The New Hampshire Bar Association has a webpage detailing the continuing conversation surrounding ABA Model Rule 8.4(g) in New Hampshire.


CLS Files Comment Letter with Maine Supreme Judicial Court
On June 5, CLS filed its comment letter with the Maine Supreme Judicial Court, which is considering adopting ABA Model Rule 8.4(g).


May 2018

CLS Files Comment Letter with New Hampshire Supreme Court
On May 25, CLS filed its comment letter with the New Hampshire Supreme Court. CLS also prepared a two-page summary for New Hampshire attorneys on why the New Hampshire Supreme Court should reject ABA Model Rule 8.4(g).


Reminder - Comments to Arizona Supreme Court Due May 21 
Arizona attorneys should submit written comments urging the Arizona Supreme Court to reject ABA Model Rule 8.4(g) by May 21, 2018. Comments can be as short as one paragraph and simply indicate agreement with the CLS comment letter of May 3, 2018, or comments can be longer and express your own concerns. Feel free to briefly discuss concerns found in the CLS letter or other longer sources.

  • CLS has prepared a short summary on why the Arizona Supreme Court should reject ABA Model Rule 8.4(g).
  • CLS' Kim Colby had an article published The Federalist Society blog discussing the consideration of ABA Model Rule 8.4(g) in Arizona.
  • A really helpful new source is a law review article written by two Arizona attorneys, Andrew Halaby and Brianna Long, which explores ABA Model Rule 8.4(g) and cautions against its adoption.
  • The Tennessee Attorney General recently issued a devastating analysis of ABA Model Rule 8.4(g), which was probably of assistance to the Tennessee Supreme Court’s decision on April 23, 2018, to reject the rule.
  • The National Lawyers’ Guild, Central Arizona Chapter, Petition is the proposal urging adoption of ABA Model Rule 8.4(g).
  • The Arizona Supreme Court’s Order opened the comment period.


California Supreme Court Modifies California Misconduct Rule
On May 10, 2018, the Supreme Court of California entered an Order adopting amendments to the Rules of Professional Conduct of the State Bar of California, including new rule Cal. R. P. C. 8.4.1 Prohibited Discrimination, Harassment and Retaliation. Before the ABA adopted Model Rule 8.4(g) in August 2016, the California State Bar had already proposed changes to the existing California rule, which allowed discipline only for discrimination or harassment found by a non-bar tribunal to have been unlawful. California is the only state that does not base its professional conduct rules on the ABA's Model Rules of Professional Conduct.

New California Rule 8.4.1 retains the requirement that the discrimination or harassment be “unlawful.” The new rule, however, drops the previous rule’s requirement that a disciplinary charge could not be brought unless a non-bar tribunal had first determined that the conduct was unlawful discrimination or unlawful harassment.

The new rule is limited to three situations: 1) when representing a client; 2) when terminating or refusing to accept the representation of a client; or 3) “in relation to a law firm’s operations.” It covers the following “protected characteristics:” “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.” When a lawyer receives notice of a disciplinary charge being issued against him or her, a lawyer must notify the United States Department of Justice or the EEOC, as well as the California Department of Fair Employment and Housing.

A comment states that the rule does not apply to “conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” California also adopted a new Rule 8.5, which provides that “[a] lawyer not admitted in California is also subject to the disciplinary authority of California if the lawyer provides or offers to provide any legal services in California.” 


Maine Supreme Judicial Court Considering Adopting ABA Model Rule 8.4(g)
The Maine Supreme Judicial Court is considering amending its current misconduct rule to add ABA Model Rule 8.4(g). On May 8, the Maine Supreme Judicial Court issued a Notice of Opportunity to Comment, opening a comment period on proposed rules changes. Pursuant to the notice, the Maine Supreme Judicial Court is accepting comments on proposed amendments to both the Maine Rules of Professional Conduct and the Maine Bar Rules. In particular, the Maine Supreme Judicial Court invites comments on proposed amendments to the Maine Rules of Professional Conduct to prohibit harassment and discrimination and proposed amendments to the Maine Bar Rules to require attorneys to attend continuing education on harassment and discrimination. Comments may be submitted in writing to the Clerk of the Maine Supreme Judicial Court no later than 4:00 pm on Tuesday, June 5, 2018. Comments may be emailed to lawcourt.clerk@courts.maine.gov or mailed to the following address:

Matthew Pollack, Executive Clerk
Maine Supreme Judicial Court
205 Newbury Street Room 139
Portland, Maine 04112-0368 

All comments must contain the name and mailing address of the individual submitting the comments and the name, mailing address, and primary telephone number of the organization (if any) on whose behalf the comments are submitted. Comments submitted via email must be in PDF format.


CLS Files Comment Letter with the Arizona Supreme Court
On May 3, CLS filed its comment letter with the Arizona Supreme Court. Several other opponents of ABA Model Rule 8.4(g) also filed comment letters. First Amendment scholar Professor Eugene Volokh filed a comment letter on May 15. South Texas College of Law Houston Professor Josh Blackman filed a comment letter as well. On May 21, 2018, the Arizona Attorney General filed a comment letter urging the Arizona Supreme Court to heed the opposition in other states, including that of state attorneys general and state bar associations, to adoption of ABA Model Rule 8.4(g).


Center Director Kim Colby Featured on The Federalist Society Blog 
On May 1, Kim Colby published an article on The Federalist Society blog discussing the Tennessee Supreme Court's rejection of ABA Model Rule 8.4(g). 


April 2018

Tennessee Supreme Court Rejects ABA Model Rule 8.4(g)
The Supreme Court of Tennessee issued an Order on April 23, denying the petition of the Tennessee Board of Professional Responsibility and the Tennessee Bar Association to adopt new Rule 8, RPC 8.4(g).


New Hampshire Supreme Court Advisory Committee Accepting Comments
The New Hampshire Supreme Court Advisory Committee on Rules is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). On April 3, the New Hampshire Supreme Court Advisory Committee on Rules issued a Public Hearing Notice, opening a comment period on court rules proposals and noticing a public hearing. Pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules is accepting comments on the court rules proposals, including New Hampshire Rules of Professional Conduct Rule 8.4 Harassment and Discrimination. Specifically, the New Hampshire Supreme Court Advisory Committee on Rules is requesting comment on three (3) different proposed amendments to RPC 8.4. The different versions are set forth in Appendices K-M of the Public Hearing Notice (pp. 20-25). 

Comments may be submitted in writing to the secretary of the Supreme Court any time on or before May 31, 2018. Comments may be emailed to rulescomment@courts.state.nh.us or mailed or hand delivered to the following address: N.H. Supreme Court, Advisory Committee on Rules, 1 Charles Doe Drive, Concord, NH 03301. Also pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules will hold a public hearing on Friday, June 1, 2018 at 12:30 p.m. at the Supreme Court Building on Charles Doe Drive in Concord.


March 2018

Tennessee Bar Association Files Letter Amending Proposed Language
The period for submitting comments to the Tennessee Supreme Court regarding adoption of proposed new RPC 8.4(g) closed on March 21. On that day, the Board of Professional Responsibility of the Tennessee Supreme Court (“the Board”) and the Tennessee Bar Association (“TBA”) filed a comment letter in further support of their joint petition. By this comment, the Board and the TBA amended their joint proposed language for the new RPC 8.4(g).

Tennessee Attorney General Finds ABA Model Rule 8.4(g) Unconstitutional
On March 16, the Tennessee Attorney General filed a comment letter with the Tennessee Supreme Court in which it opined that both ABA Model Rule 8.4(g) and Tennessee's proposed version, if adopted, would violate the constitutional rights of Tennessee attorneys and would conflict with existing Tennessee Rules of Professional Conduct.


February 2018

Idaho Supreme Court Considering Adopting ABA Model Rule 8.4(g)
The Idaho Supreme Court is considering a proposal to amend the state's professional misconduct rule by adding a subsection (g), said subsection (g) being essentially ABA Model Rule 8.4(g). CLS submitted a comment letter to the Idaho Supreme Court on February 16.


January 2018

CLS Files Comment Letter in Tennessee
On January 31, CLS filed its comment letter with the Tennessee Supreme Court opposing adoption of ABA Model Rule 8.4(g).


Arizona Supreme Court Accepting Comments on Adopting ABA Model Rule 8.4(g) 
The Arizona Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g) as Arizona Rule of Professional Conduct Rule 8.4(h). On January 18, the Arizona Supreme Court issued an Order opening, for public comment, various rule change petitions, including the one to adopt ABA Model Rule 8.4(g). The Arizona Supreme Court is accepting comments through May 21, 2018. CLS will be filing a comment with the Arizona Supreme Court opposing adoption of ABA Model Rule 8.4(g).

Comments may be filed electronically. To do so, you must be a registered user of the Court Rules Forum (see “How to Register” below). Once you have registered, you must log in. Go to the Court Rules Forum page and select the “Rules of the Supreme Court” folder. Search for R-17-0032. Once found, click on it and a new page will appear displaying information about the petition. Click “Add Reply” to begin the comment process.

In the "Message" field you must list the following:

          Commenter's Name
          Committee Name, if applicable
          Mailing Address
          Phone Number
          Email Address
          Bar Number, if you are an attorney

If the comment does not include the applicable information, then the Court Rules Forum Moderator will reject the comment.

You may type your complete comment in the “Message” field below the above information, or you may submit your comment as a document by opening the “Attachments” bar (click on the arrow at the right-hand side of the bar). If the comment is provided as an attachment, it must be in PDF format, immediately followed by a copy in Microsoft Word format as the second attachment. The PDF version will be considered the official copy if any differences are found between the PDF and Word versions.

If you wish to provide any supplemental documents, these must also be included as attachments by opening the “Attachments” bar as indicated above. All attachments must be in PDF and Microsoft Word format.

Your comment will not automatically appear on the Court Rules Forum. Once the Moderator has approved the comment, it will appear on the Court Rules Forum.

How to Register: Click on “Register” button on the right-hand side below the Court Rules Forum banner photo. You will be required to choose a username and a password, which you will need to log in. You will also be required to enter a “Display Name” (e.g., your first name, last name, or any other identifier you choose) and a valid e-mail address. After submitting your registration request, you will be instructed to verify your registration by following a link that will be sent to your e-mail address. You must verify your registration before logging in for the first time. Once you have successfully registered and logged in using your User Name and Password, you may file comments.

In the alternative, comments may be filed by submitting an original and one paper copy of the comment, as well as one electronic copy of the written comments and supporting documents in Microsoft Word format on a CD or other compatible electronic medium. You may deliver the comments in person or mail them to the Clerk of the Supreme Court, 1501 West Washington St., Room 402, Phoenix, AZ 85007-3329 in an envelope marked “Rule Comment.

Any person filing a comment must also send a copy of the comment to the Petitioner electronically or by regular mail.


November 2017

Louisiana State Bar Association Rules of Professional Conduct Committee Rejects ABA Model Rule 8.4(g)
On November 27, the Rules of Professional Conduct Committee ("Rules Committee") of the Louisiana State Bar Association (“LSBA”) voted 7-4 not to recommend proposed Rule 8.4(h) to either the LSBA House of Delegates or the Louisiana Supreme Court. In a letter to the LSBA Director of Member Outreach and Diversity, the Chair of the Rules Committee stated that the Rules Committee “determined not to proceed further with either ABA Model Rule 8.4(g) or the modified amendment to Rule 8.4 as proposed by the Subcommittee.” Professor Dane Ciolino wrote an insightful article discussing the decision. 


Tennessee Supreme Court Seeking Comments 
On November 21, the Tennessee Supreme Court issued an Order seeking public comment on a proposal to adopt ABA Model Rules 8.4(g). Comments are due March 21, 2018. Written comments may be emailed to appellatecourtclerk@tncourts.gov or mailed to: James M. Hivner, Clerk Re: Tenn. Sup. Ct. R. 9, section 32, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue, North Nashville, TN 37219-1407 and should reference the docket number No. ADM2017-02244.


Tennessee Supreme Court Considering ABA Model Rules 8.4(g)
On November 15, the Board of Professional Responsibility of the Tennessee Supreme Court ("Board") and the Tennessee Bar Association ("TBA") filed a joint Petition with the Tennessee Supreme Court asking it to adopt a new Tennessee Supreme Court Rule 8, RPC 8.4(g). The proposed new Tennessee RPC 8.4(g) is essentially ABA Model Rule 8.4(g) with two added sentences, both purportedly added to deal with First Amendment concerns. In summary, the TBA and the Board are asking the Tennessee Supreme Court to adopt ABA Model Rule 8.4(g) with a modification to “protect speech,” which the modification actually does not do.


September 2017

Nevada Supreme Court Orders Petition Withdrawn
On September 25, the Nevada Supreme Court issued an Order granting permission to the State Bar of Nevada Board of Governors to withdraw its petition to amend the Nevada Rules of Professional Conduct to include ABA Model Rule 8.4(g).


New Hampshire Committees Work to Revise Proposed Rule
A joint committee composed of members of the New Hampshire Bar Association Ethics Committee and the New Hampshire Supreme Court Advisory Committee on Rules revised the proposed rule change, which was then presented at the September 15, 2017, meeting of the New Hampshire Supreme Court Advisory Committee on Rules. 


North Dakota Supreme Court Committee Rejects ABA Model Rule 8.4(g)
The North Dakota Supreme Court's Joint Committee on Attorney Standards, after discussion of ABA Model Rule 8.4(g) at its September 15, 2017, meeting, voted to reject ABA Model Rule 8.4(g). Members of the committee raised concerns ranging from the breadth of the rule to First Amendment issues.


Louisiana AG Issues Opinion Calling ABA Model Rule 8.4(g) Unconstitutional
On September 8, Jeff Landry, the Attorney General for the State of Louisiana, issued an opinion concluding that both ABA Model Rule 8.4(g) and the Louisiana State Bar Association's proposed Rule 8.4(h) violate the First and Fourteenth Amendments of the United States Constitution. On September 14, U.S. News and World Report published an article that reported on the Louisiana Attorney General's opinion.


Idaho State Bar Association Approves Proposed Changes to Misconduct Rule
Also on September 8, the Idaho State Bar Association’s Board of Commissioners approved, by a 4-1 vote, a proposed rule change to its misconduct rule. As background, from January 2017 to May 2017, a subcommittee of the Professional and Ethics Section of the Idaho State Bar Association met and proposed a draft rule that modifies ABA Model Rule 8.4(g) in significant ways, but still remains overly broad. The subcommittee approved the draft rule at its May 8, 2017 meeting. The subcommittee then presented its recommendation to the full committee at the June 6, 2017 Professional and Ethics Section meeting. The full committee approved the proposed rule, after which it was presented to the Idaho State Bar Association’s Board of Commissioners.


Nevada State Bar Requests Petition be Withdrawn
In a letter dated September 6, the Board of Governors of the State Bar of Nevada requested that the Nevada Supreme Court withdraw the petition to adopt ABA Model Rule 8.4(g). 


August 2017

Louisiana District Attorneys Oppose Rule 8.4 Amendment
On August 31, the Louisiana District Attorneys Association sent a letter to the Louisiana State Bar Association formally opposing the proposed Rule 8.4(h).


CLS Files Comment Letter with Louisiana State Bar Association
On August 14, CLS filed a comment letter opposing the Rule 8.4 changes with the Louisiana State Bar Association.


July 2017

Nevada Supreme Court Extends Comment Period a Second Time
In an Order issued July 31, the Supreme Court of Nevada once again extended the open comment period, this time to October 30, 2017, and also moved the public hearing to November 6, 2017 at 3:00 p.m. Comments must be submitted and received in hard-copy format (one original and eight copies) by 5:00 p.m. on October 30, 2017. Electronically-submitted comments will not be accepted. Comments should still be mailed to Elizabeth A. Brown, Clerk of the Supreme Court, 201 South Carson Street, Carson City, NV, 89701.


CLS Files Comments with Utah Supreme Court
CLS submitted its comment letter opposing the adoption of ABA Model Rule 8.4(g) in Utah. All of the submitted comments may be read at the following link: https://www.utcourts.gov/utc/rules-comment/2017/06/13/rules-of-professional-conduct-comment-period-closes-july-28-2017/.


Nevada Supreme Court Extends Comment Period
The Supreme Court of Nevada issued an Order on July 7, extending the period for written comments to August 30, 2017, and also changing the date of the hearing to September 6, 2017, at 3:00 p.m.


June 2017

CLS Files Comment Letter in Nevada
On June 26, CLS filed a comment letter opposing adoption of ABA Model Rule 8.4(g) with the Nevada Supreme Court.


South Carolina Supreme Court Rejects ABA Model Rule 8.4(g)
On June 20, the South Carolina Supreme Court issued an Order announcing it would not incorporate ABA Model Rule 8.4(g) into the South Carolina Rules of Professional Conduct.


Tennessee Bar Association Supports Adoption of ABA model Rule 8.4(g)
At the June 17 meeting of the Tennessee Bar Association (“TBA”) Board of Governors, the Board of Governors discussed a Report and Recommendation of the TBA Standing Committee on Ethics and Professional Responsibility (“the Ethics Committee”) regarding Tennessee Rule of Professional Conduct 8.4(g). In summary, the Ethics Committee recommended adopting an anti-harassment and anti-discrimination ethics rule. According to the report, the Ethics Committee spent several months debating and discussing whether to recommend pursuing a revision of Tennessee’s misconduct rule, TN RPC 8.4, along the lines of ABA Model Rule 8.4(g). After much discussion, the Ethics Committee voted 15-9 in favor of amending TN RPC 8.4, providing the proposed rule contained additional language “unique to Tennessee … to make very clear the scope of protected First Amendment activity lawyers would still retain." 


Utah Supreme Court Opens Comment Period on ABA Model Rule 8.4(g)
The Utah Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). The Utah Supreme Court is accepting online comments through July 28, 2017.


May 2017

Nevada Supreme Court Holds Comment Period on ABA Model Rule 8.4(g) 
The Supreme Court of Nevada issued an Order on May 25, in which it announced a public hearing and requested public comment on the Petition from the Nevada State Bar to amend the Nevada Rules of Professional Conduct to include ABA Model Rule 8.4(g). The public hearing will take place on Monday, July 17, 2017, at 2:30 p.m., at the Nevada Supreme Court. The court is accepting written comments regarding the proposed amendments. Comments must be submitted and received in hard-copy format (one original and eight copies) by 5:00 p.m. on July 5, 2017. Electronically-submitted comments will not be accepted. Comments should be mailed to Elizabeth A. Brown, Clerk of the Supreme Court, 201 South Carson Street, Carson City, NV, 89701.


Nevada Supreme Court Considering Adopting ABA Model Rule 8.4(g)
On May 8, the Board of Governors of the State Bar of Nevada filed a Petition with the Nevada Supreme Court to amend the Nevada Rules of Professional Conduct to include ABA Model Rule 8.4(g). 


South Carolina Attorney General Opines on Unconstitutionality of ABA Model Rule 8.4(g)
On May 1, the South Carolina Attorney General's Office issued a written opinion in which it concluded "that the likelihood of a successful challenge to the Model Rule based on the First Amendment and the Establishment Clause is substantial and that a court could well conclude the Rule is unconstitutional."


April 2017

New Jersey Supreme Court Internal Rules Committee Considering Adopting ABA Model Rule 8.4(g)
In April 2017, the Board of Trustees of the New Jersey State Bar Association backed a plan to request that the New Jersey Judiciary incorporate a provision into the New Jersey Rules of Professional Conduct that would classify as professional misconduct a lawyer’s engagement in harassment or biased conduct in the practice of law. 


Montana Legislature Passes Joint Resolution
On April 12, the Montana Legislature passed a joint resolution in which it condemned ABA Model Rule 8.4(g). In addition, Professor Eugene Volokh, who has been an outspoken opponent of the proposed rule, wrote an article regarding the move by the Montana Legislature.


Montana Office of Disciplinary Counsel Files Comments
On April 10, the Montana Office of Disciplinary Counsel filed comments with the Montana Supreme Court opposing adoption of ABA Model Rule 8.4(g) by the Montana Supreme Court, noting that the rule is overly broad.


March 2017

California Supreme Court Considers Modifying its Misconduct Rule
On March 30, the Office of the General Counsel, State Bar of California, filed a request with the California Supreme Court to approve proposed amendments to the California Rules of Professional Conduct, including proposed new Rule 8.4.1. California is the only state that does not base its professional conduct rules on the ABA's Model Rules of Professional Conduct. There is no timetable as to when the California Supreme Court may act on the proposed rule amendments.  


Louisiana State Bar Association Considering ABA Model Rule 8.4(g)
The Louisiana State Bar Association is considering adopting ABA Model Rule 8.4(g). A subcommittee of the Louisiana Bar Association's Rules of Professional Conduct Committee ("Rules Committee") studied ABA Model Rule 8.4(g), along with rules of other U.S. jurisdictions. On March 24, the subcommittee, upon completion of the study, made a Report and Recommendation to the Rules Committee. The recommendation proposes adding a new Rule 8.4(h) to the Louisiana Rules of Professional Conduct. The report and recommendation is summarized in an Executive Summary. While the Rules Committee has not yet taken a position on the recommendation, the Rules Committee is seeking written comments through September 16, 2017.


CLS Files Comment Letter with South Carolina Supreme Court
On March 22, CLS filed its comment letter opposing adoption of ABA Model Rule 8.4(g) with the South Carolina Supreme Court.


North Dakota Supreme Court is Considering ABA Model Rule 8.4(g)
The North Dakota Supreme Court requested that its Joint Committee on Attorney Standards consider the recent amendment by the American Bar Association to its Model Rule 8.4(g). After discussion of the model rule at its March 24 meeting, the committee voted to table the issue until the committee's meeting in the fall of 2017.  


California Ethics Symposium
The State Bar of California announced it will be sponsoring an ethics symposium on Friday, April 21, 2017, at the Loyola Law School in Los Angeles. Included in the topics to be discussed is an "Analysis of the significant changes made by the proposed new rules of professional conduct." 


New Hampshire Bar Association Considering ABA Model Rule 8.4(g)
On March 9, the New Hampshire Bar Association Board of Governors voted to approve submission of a proposed rule change to the New Hampshire Supreme Court Advisory Committee on Rules, the body that would make a recommendation to the New Hampshire Supreme Court, which ultimately decides whether to adopt new rules. The change in the New Hampshire Rules of Professional Conduct would make many forms of discrimination an ethical violation. The proposed rule is notable in several respects. First, New Hampshire is one of only a handful of states that has no anti-discrimination rules or comments covering lawyers’ ethics. When New Hampshire rewrote its Rules of Professional Conduct in 2007, it did not adopt subsection (d) of Model Rule 8.4 relating to the administration of justice. As a result, New Hampshire took no action regarding the ABA’s 1998 Comment 3 prohibiting lawyer bias or prejudice. Hence, the state’s current rules and comments make no reference to bias or discrimination in the practice of law. Second, the proposed rule mirrors New Hampshire’s anti-discrimination law. As a result, the rule does not include the ABA’s bans on discrimination on the basis of gender identity or socioeconomic status. 


Arizona Supreme Court Denies Motion for Expediting Misconduct Rule Change Petition
On March 2, the Supreme Court of Arizona ruled against the expedited motion finding no reason to expedite the untimely petition and stating the “petition would be considered in due course during the Court’s 2018 rules cycle.”


February 2017

Arizona Supreme Court Considering Adopting ABA Model Rule 8.4(g)
The Central Arizona Chapter of the National Lawyer Guild filed a Petition to Amend Rule 42, E.R. 8.4, with the Arizona Supreme Court on February 23. Pursuant to Rules 28(A)(1) of the Arizona Supreme Court, a petition for rule change must be filed by January 10 in any given year to be considered by the Arizona Supreme Court at its annual rules agenda. Four days later, on February 27, the Central Arizona Chapter of the National Lawyer Guild filed a Motion for Expedited Consideration of its previously-filed petition.


CLS Files Comment Letter with Pennsylvania Disciplinary Board
On February 3, CLS filed a comment letter with the Disciplinary Board of the Pennsylvania Supreme Court supporting its proposed amendments (with two additional changes) and opposing ABA Model Rule 8.4(g).


January 2017

South Carolina Bar Adopts Proposal to Not Approve ABA Model Rule 8.4(g)
The South Carolina Bar Professional Responsibility Committee considered ABA Model Rule 8.4(g) and, in January, advised the House of Delegates of the South Carolina Bar that it opposed the model rule. During the January 2017 South Carolina Bar Convention, the House of Delegates debated the model rule. The House of Delegates ultimately adopted a proposal "to not approve Rule 8.4(g) as written and to have a public hearing and public comment." In light of that action by the House of Delegates, the South Carolina Supreme Court is soliciting public comment as to whether ABA Model Rule 8.4(g) should be adopted in South Carolina. Comments are due by March 29, 2017. Written comments should be submitted to rule8.4comments@sccourts.org and should be submitted as an attachment to the email as either a Microsoft Word document or an Adobe PDF document.


CLS Files Comment Letter with Illinois Supreme Court
On January 13, CLS filed a comment letter with the Illinois Supreme Court opposing adoption of ABA Model Rule 8.4(g).


December 2016

Texas Attorney General Finds ABA Model Rule 8.4(g) Unnecessary and Unconstitutional
On December 20, the Texas Attorney General issued an advisory opinion finding that ABA Model Rule 8.4(g) is unnecessary to protect against prohibited discrimination in the State of Texas and, were it to be adopted, a court would likely invalidate it as unconstitutional.


Idaho State Bar Association Studying ABA Model Rule 8.4(g)
The Professional and Ethics Section of the Idaho State Bar Association formed a subcommittee in December 2016 to study ABA Model Rule 8.4(g) and to develop and recommend a draft rule for consideration by the Professional and Ethics Section.


Illinois State Bar Association Opposes ABA Model Rule 8.4(g)
The Illinois Supreme Court's Committee on Professional Responsibility is considering a change to its misconduct rule, Illinois Rules of Professional Conduct Rule 8.4(j). The Illinois State Bar Association, at its December meeting, noted its opposition to ABA Model Rule 8.4(g). Further information can be found by reading the following articles: ISBA Assembly Opposes Adoption of 8.4(g) in Illinois and Proposed rule on harassment and discrimination opposed by Illinois Bar members.


CLS Files Comment Letter in Montana
On December 8, CLS filed a comment letter with the Montana Supreme Court opposing adoption of ABA Model Rule 8.4(g).


Montana Supreme Court Extends Comment Period
The Montana Supreme Court issued an Order on December 7, extending the deadline for submitting comment letters from December 9, 2016, to April 21, 2017.


Pennsylvania Disciplinary Board Accepting Comments on Proposed Rule Change
The Disciplinary Board of the Supreme Court of Pennsylvania is considering amending its current Rule 8.4. The Board gave Notice on December 3, that it was considering recommending to the Pennsylvania Supreme Court amendments to Pennsylvania Rules of Professional Conduct Rule 8.4. The Board is accepting comments until February 3, 2017. At the same time, the Pennsylvania Bar Association Women in the Profession Committee (“WIP”), with the support of other Pennsylvania Bar Association entities, is circulating a separate proposal for amending Rule 8.4. This second proposal is essentially ABA Model Rule 8.4(g).


October 2016

Montana Supreme Court Considering ABA Model Rule 8.4(g) Opens Comment Period
The Montana Supreme Court is considering amending Rule 8.4 of the Montana Rules of Professional Conduct to include ABA Model Rule 8.4(g). The Montana Supreme Court issued an Order opening a comment period until December 9, 2016, accepting public comment on the proposed rule.


September 2016

CLS Submits Comment Letter to California Bar Association
Christian Legal Society, on September 27, submitted a comment letter to the California State Bar regarding the proposed changes to its current Rule 2-400 and its proposed Rule 8.4.1. California's current "bias" rule requires that a tribunal other than the state bar find that an attorney has committed "unlawful discrimination" before a disciplinary charge may be brought. One proposed alternative would delete that requirement.


Sign the National Center for Law & Policy Comment Letter
The National Center for Law & Policy, a California organization, invites individual California attorneys and/or organizations to sign onto a comment letter. Any attorney wishing to sign the letter can send their formal name and California Bar number to Amy Cappelletti, ACappelletti@nclplaw.org, by close of business on Monday.


August 2016

California Bar Association Accepting Comments on Proposed Ethics Rules Changes
The California Bar Association, which is revising its ethics rules, announced a comment period regarding proposed amendments to its ethics rules. The comment period ends at 5 p.m., Tuesday, September 27, 2016. These proposed amendments include California's misconduct rule. California is the only state that does not base its professional conduct rules on the ABA's Model Rules of Professional Conduct. 

Among the revisions to CA Rule 8.4.1 are two alternative proposals. The first would make it professional misconduct to harass or discriminate on the basis of 20 protected characteristics. One version would also remove the current requirement that an attorney be found by a court to have engaged in unlawful harassment or discrimination before a disciplinary charge could be brought. That proposal would also require the state bar to notify the federal Department of Justice or the Equal Employment Opportunity Commission when it issues a disciplinary charge against an attorney under Rule 8.4.1.

These changes are just as objectionable as the ABA's Proposed Model Rule 8.4 Rule change. A local bar association sent out an article entitled Cal. Rules Redo Marries Borrowed Rules With Old and New that purports to address the numerous changes being made to the Rule of Professional Conduct in California. The article discusses the California Rules 8.4.1 change regarding discrimination, harassment and retaliation.