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Colorado

ABA Model Rule 8.4(g) Efforts in Colorado


Status of Action in Colorado

September 2019
Status – The Colorado Supreme Court adopted an amendment to Rule 8.4 of the Colorado Rules of Professional Conduct. 

On September 19, the Colorado Supreme Court amended Rule 8.4 of the Colorado Rules of Professional Conduct to include a prohibition on sexual harassment. Specifically, the Colorado Supreme Court added new subsection (h) and Comment [5] to its current Rule 8.4. It should be noted that the Rule 8.4 amendment in Colorado is not ABA Model Rule 8.4(g) as it specifically addresses sexual harassment in connection with a lawyer's professional activities.

June 2019
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.

February 2019
The Colorado Supreme Court is seeking written comments from the public on a proposed amendment to Rule 8.4 of the Colorado Rules of Professional Conduct. The proposed amendment in Colorado is not ABA Model Rule 8.4(g) and differs 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. In the alternative, written comments may be emailed to 
cheryl.stevens@judicial.state.co.us. All comments must be received no later than 5:00 p.m. on May 15, 2019.


Proposed Rule Changes in Colorado

Current Rule 8.4 Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice

(g) engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person's race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process

Comment
[3] A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (g) and also may violate paragraph (d). Legitimate advocacy respecting the foregoing factors does not violate paragraphs (d) or (g). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.

[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.


Proposed Rule 8.4 Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:

(a) – (h) [NO CHANGE]

(i) engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.

Comment
[1]-[5] [NO CHANGE]

[5A] Sexual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome. The substantive law of employment discrimination, including antiharassment statutes, regulations, and case law, may guide, but does not limit, application of paragraph (i). “Professional activities” are not limited to those that occur in a client-lawyer relationship.