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Iowa

ABA Model Rule 8.4(g) Efforts in Iowa


Status of Action in Iowa 

November 2019
The Iowa Supreme Court is considering adopting ABA Model Rule 8.4(g).

On November 26, Kim Colby published an article on The Federalist Society Blog post explaining why the Iowa Supreme Court should not adopt ABA Model Rule 8.4(g).

As a reminder, the public comment period regarding Iowa's proposed Rule 8.4(g) closes on December 30, 2019. Three quick ways to submit comments are by: (1) sending an email attaching in a Word document comments opposing the proposed rule (as simple as one sentence saying you oppose adoption of the rule); (2) sending an email attaching, after signing, this sample Iowa comment letter, which provides basic common-sense reasons for opposing the proposed rule change; and (3) sending an email with a Word document attachment saying you oppose for reasons stated by CLS in its letter. CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why the Iowa Supreme Court should not adopt the proposed rule.

September 2019
On September 27, the Iowa Supreme Court issued an order extending the public comment period until December 30, 2019. The Iowa State Bar Association and the Iowa Academy of Trial Lawyers requested the 90-day extension, which was granted by the court.

August 2019
In response to the public comment period being held by the Supreme Court of Iowa, CLS submitted, on August 10, 2019, a comment letter opposing the proposal to amend the existing Iowa Rules of Professional Conduct Rule 8.4(g)

Two quick ways to submit comments are by (1) signing and emailing this Iowa comment letter (after changing it to Microsoft Word format) providing basic common-sense reasons for opposing the proposed rule change to rules.comments@iowacourts.gov; or (2) sending a short email simply stating that you oppose changing Iowa Rules of Professional Conduct Rule 32:8.4 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 Iowa Supreme Court should not adopt the proposed Iowa Rules of Professional Conduct Rule 32:8.4(g).

On August 1, 2019, the Supreme Court of Iowa issued an Order requesting public comment on proposed amendments to Chapter 32, Iowa Rules of Professional Conduct, including Rule 32:8.4 (Misconduct). According to the Order, the Iowa Supreme Court is considering adopting several of the ABA's updated model rules so that the Iowa Rules of Professional Conduct "conform to the ABA's latest model rules." The proposed amendment to Iowa's misconduct rule is to adopt ABA Model Rule 8.4(g) in its entirety.

Any interested person, organization, or agency may submit written comments. The deadline for submitting comments is 4:30 p.m. on September 30, 2019. All comments must refer to the specific rule number and line number (for example, Rule 32:8.4(g), page 33, lines 44-46; page 34, lines 1-46, and page 35, line 1). Comments may be emailed to rules.comments@iowacourts.gov, must state "Chapter 32 Amendments" in the subject line of the email, and must be sent as an attachment to the email in Microsoft Word format. Comments may also be delivered in person or mailed to the Clerk of the Iowa Supreme Court, 1111 East Court Avenue, Des Moines, Iowa, 50319. 


Proposed Rule Changes in Iowa

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

(a) violate or attempt to violate the Iowa 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) engage in conduct that is prejudicial to the administration of justice;

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

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

(g) engage in sexual harassment or other unlawful discrimination in the practice of law or knowingly permit staff or agents subject to the lawyer's direction and control to do so.

Current Comment
[1] Lawyers are subject to discipline when they violate or attempt to violate the Iowa Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.

[2] Illegal conduct can reflect adversely on fitness to practice law. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[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. For another reference to discrimination as professional misconduct, see paragraph (g).

[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 32:1.2(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.

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of a lawyer. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent, and officer, director, or manager of a corporation or other organization.

[6] It is not professional misconduct for a lawyer to advise clients or others about or to supervise or participate in lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights or in lawful intelligence-gathering activity, provided the lawyer's conduct is otherwise in compliance with these rules. "Covert activity" means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. Covert activity may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place, or will take place in the foreseeable future. Likewise, a government lawyer who supervises or participates in a lawful covert operation which involves misrepresentation or deceit for the purpose of gathering relevant information, such as law enforcement investigation of suspected illegal activity or an intelligence-gathering activity, does not, without more, violate this rule.


Proposed 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 32:1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Proposed 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 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 32:1.5(a). Lawyers also should be mindful of their professional obligations under Rule 32:6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 32:6.2 not to avoid appointments from a tribunal except for good cause. See Rule 32:6.2(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 32:1.2(b).