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Idaho

ABA Model Rule 8.4(g) Efforts in Idaho

Status of Action in Idaho

September 2018
Status – The Idaho Supreme Court rejected 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 Rule of Professional Conduct 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, 2018.

February 2018
The Idaho Supreme Court is considering a a proposal to amend the state's professional misconduct rule by adding a subsection (g) that is similar to ABA Model Rule 8.4(g). CLS submitted a comment letter to the Idaho Supreme Court on February 16, 2018.

July 2017
The Professional and Ethics Section of the Idaho State Bar Association (“ISBA”) 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. From January 2017 to May 2017, the subcommittee met and proposed a draft rule that modifies ABA Model Rule 8.4(g) in significant ways; however, it remains overly broad and should be rejected. 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 8.4. Thereafter, the proposed rule was presented to the Idaho State Bar Association’s Board of Commissioners, who also approved the proposed rule.


Proposed Rule Changes in Idaho

Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

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

Commentary
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
 

Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

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

(g) engage in discrimination or harassment, defined as follows:

(1) in representing a client or operating or managing a law practice, engage in conduct that the lawyer knows or reasonably should know is unlawful discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules; and

(2) in conduct related to the practice of law, engage in conduct that the lawyer knows or reasonably should know is harassment. Harassment is derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. To constitute a violation of this subsection, the harassment must be severe or pervasive enough to create an environment that is intimidating or hostile to a reasonable person. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules.


Commentary
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Harassment includes sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal, written, or physical conduct of a sexual nature. Factors to be considered to determine whether conduct rises to the level of harassment under paragraph (g)(2) of this Rule include: the frequency of the harassing conduct; its severity; whether it is threatening or humiliating, or a mere offensive utterance; whether it is harmful to another person; or whether it unreasonably interferes with conduct related to the practice of law. Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of harassment under paragraph (g)(2). The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes: representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business, or social activities in connection with the practice of law.

[5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation consistent with Rule 1.5(a). Lawyers should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).