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Alaska

ABA Model Rule 8.4(g) Efforts in Alaska


Status of Action in Alaska

September 2019
Status - The Alaska Bar Association is considering adopting ABA Model Rule 8.4(g).

On September 5, the Board of Governors of the Alaska Bar Association unanimously voted to remand proposed Alaska Rule 8.4(f) back to the Alaska Bar Association's Rules of Professional Conduct Committee for further action. This decision follows the recommendation made last week by the Committee. At the Board of Governors' meeting, before the vote, the Board heard from a handful of members of the Alaska Bar regarding the proposed rule.

August 2019
On August 29, Center Director Kim Colby published an article on The Federalist Society blog discussing the letter filed by the Alaska Attorney General in which he warns the Alaska Bar Association that the proposed Rule 8.4(f) is unconstitutional.

Also on August 29, the Chair of the Alaska Bar Association's Rules of Professional Conduct Committee ("Rules Committee") sent a letter to the president of the Alaska Bar Association advising him that the Rules Committee, after having reviewed the "unprecedented" number of comments, voted 8-1 to recommend to the Board of Governors that it not submit the proposed Rule 8.4(f) to the Supreme Court, but instead remand the matter back to the Rules Committee for further drafting.

The Alaska Bar Association announced, on August 22, 2019, that the Alaska Bar Association Board of Governors will hear, on September 5, 2019, at 1 p.m., Bar members’ comments on whether to adopt the proposed Rule of Professional Conduct Rule 8.4(f). Proposed Rule 8.4(f) would effectively impose the highly problematic ABA Model Rule 8.4(g) on members of the Alaska Bar. Alaska Bar members wishing to provide two-minute comments should be at the Bar Association's conference room located at 840 K Street, Ste. 100, Anchorage, before 1 p.m. on September 5.

On August 9, 2019, Kevin Clarkson, the Alaska Attorney General, sent a letter to the Board of Governors of the Alaska Bar Association commenting on proposed Alaska Rule 8.4(f). Attorney General Clarkson opined that the Alaska Bar Association should not recommend – and the Alaska Supreme Court should not adopt – the proposed rule, calling the proposed rule "unwise" and "unconstitutional." On the same day, the AG's office issued a press release announcing the filing of the letter.

July 2019
In response to the public comment period being held by the Alaska Bar Association, CLS submitted, on July 29, 2019, a comment letter opposing the proposal to amend Alaska Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g).

Two quick ways to comment are (1) by signing and emailing to page@alaskabar.org this Alaska 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 Alaska Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter.

In the alternative, you may file your own comment letter. CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why the Alaska Bar Association should not adopt the proposed Alaska Rule 8.4(f).

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.

Also on July 29, Center Director Kim Colby published an article on The Federalist Society blog discussing why the Alaska Bar Association should not adopt proposed Alaska Rule of Professional Conduct Rule 8.4(f).

June 2019
In June, the Alaska Bar Association provided notice of the proposed Rule 8.4(f) in its April-June 2019 Alaska Bar Rag issue (see page 18).

May 2019
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.

          Comment

          Discrimination and harassment by lawyers in violation of paragraph (f) undermines confidence in
          the legal profession and the legal system. Such discrimination includes harmful verbal conduct
          or physical conduct that manifests bias or prejudice to others based on perceived membership
          in one or more of the groups listed in paragraph (f). The substantive laws of anti-discrimination
          and anti-harassment statutes and case law provide guidance to the application of paragraph (f).

          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. A lawyer does
          not violate paragraph (f) by limiting the scope or subject matter of the lawyer’s practice to
          members of underserved populations in accordance with these Rules and other law. A lawyer’s
          representation of a client does not constitute an endorsement of the client’s views or activities.
          See Rule 1.2(b).   

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.


Proposed Rule Changes in Alaska

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

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) state or imply an ability either to influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.


Proposed Rule 8.4(f)
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.

Comment

Discrimination and harassment by lawyers in violation of paragraph (f) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal conduct or physical conduct that manifests bias or prejudice to others based on perceived membership in one or more of the groups listed in paragraph (f). The substantive laws of anti-discrimination and anti-harassment statutes and case law provide guidance to the application of paragraph (f).

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. A lawyer does not violate paragraph (f) by limiting the scope or subject matter of the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer’s representation of a client does not constitute an endorsement of the client’s views or activities. See Rule 1.2(b).