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ABA Model Rule 8.4(g) Efforts in Utah


Status Of Action In Utah

August 2018 
Status – The Utah Supreme Court is considering ABA Model Rule 8.4(g).

On August 17, 2018, CLS filed with the Utah Supreme Court supplemental comments regarding the proposal to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period last year, but filed the supplemental comments to bring to the attention of the Utah Supreme 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").

On August 24, 2018, Kim Colby was featured on The Federalist Society Blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in NIFLA and Matal v. Tam, 137 S. Ct. 1744 (2017).

August 2017

The Utah Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). The Utah Supreme Court accepted online comments through July 28, 2017. CLS submitted comments opposing the adoption of ABA Model Rule 8.4(g) in Utah. Click here to read the comments submitted by CLS. 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/.


Proposed Rule Changes in Utah

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

Comment
[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.

[3a] The Standards of Professionalism and Civility approved by the Utah Supreme Court are intended to improve the administration of justice. An egregious violation or a pattern of repeated violations of the Standards of Professionalism and Civility may support a finding that the lawyer has violated paragraph (d).

Proposed Rule – ABA Model Rule 8.4(g)
It is professional misconduct for a lawyer to:

(g) 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 in conduct related to 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.

Comment
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. 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. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[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 or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also 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. See Rule 6.2(a), (b) and (c). 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).