ABA Model Rule 8.4(g) Efforts in Maine
Status of Action in Maine
Status – The Maine Supreme Judicial Court is considering adopting ABA Model Rule 8.4(g).
The Maine Supreme Judicial Court will be holding a public hearing to receive oral comments on a proposed amendment adding Rule 8.4(g) to the Maine Rules of Professional Conduct to prohibit harassment and discrimination. The hearing will be at 1:30 on Tuesday, October 23, 2018, in Courtroom 12 of the Cumberland County Courthouse in Portland, Maine.
On August 17, 2018, CLS filed with the Maine Supreme Judicial Court supplemental comments regarding Proposed Rule 8.4(g). CLS had previously submitted comments before the close of the comment period on June 5, 2018, but filed the supplemental comments to bring to the attention of the Maine Supreme Judicial 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), which was after the comment period in Maine closed.
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).
On June 5, 2018, CLS filed its comment letter with the Maine Supreme Judicial Court.
Comments due by 4:00 pm June 5, 2018
The Maine Supreme Judicial Court is considering amending its current misconduct rule to add ABA Model Rule 8.4(g). On May 8, 2018, the Maine Supreme Judicial Court issued a Notice of Opportunity to Comment, opening a comment period on proposed rules changes.
Pursuant to the notice, the Maine Supreme Judicial Court is accepting comments on proposed amendments to both the Maine Rules of Professional Conduct and the Maine Bar Rules. In particular, the Maine Supreme Judicial Court invites comments on proposed amendments to the Maine Rules of Professional Conduct to prohibit harassment and discrimination and proposed amendments to the Maine Bar Rules to require attorneys to attend continuing education on harassment and discrimination.
Comments may be submitted in writing to the Clerk of the Maine Supreme Judicial Court no later than 4:00 pm on Tuesday, June 5, 2018. Comments may be emailed to firstname.lastname@example.org or mailed to the following address:
Matthew Pollack, Executive Clerk
Maine Supreme Judicial Court
205 Newbury Street Room 139
Portland, Maine 04112-0368
All comments must contain the name and mailing address of the individual submitting the comments and the name, mailing address, and primary telephone number of the organization (if any) on whose behalf the comments are submitted. Comments submitted via email must be in PDF format.
CLS will be filing a comment letter shortly opposing adoption of the proposed rule changes.
Proposed Rule Changes in Maine
Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or unlawful 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 Maine Rules of Professional Conduct, the Maine Bar Rules or law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or law.
Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonable should know is harassment, or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.
Advisory Committee Note – 2018
Subsection (g) is added and is based on ABA Model Rule of Professional Conduct 8.4(g), with some modifications.
The Committee has omitted the final two sentences of the ABA Model Rule, not out of disagreement with their substance, but because they are unnecessary to the Rule text. Lawyers are free to accept and decline representations as they see fit, in accordance with Rule 1.16, and lawyers do not run afoul of subsection (g) by offering legal advice or advocacy on behalf of clients consistent with the Rules.
The Committee endorses the substance of those omitted sentences. The Committee has omitted from the list of types of prohibited discrimination “marital status” and “socioeconomic status.” The Committee considered the Legislature’s statement of anti-discrimination policy in the Maine’s Human Rights Act, 5 M.R.S. § 4552, as well as application of that Act, in coming to the Committee’s own conclusions on what to include or not include in a rule of attorney discipline.
Comments  through  to the ABA Model Rule provide much useful guidance in the application of Model Rule 8.4(g). Historically, the Maine Supreme Judicial Court has not adopted Comments when adopting amendments to the Rules of Professional Conduct. The Advisory Committee considers it important to alert practitioners to the following points regarding the application of Maine’s Rule 8.4(g); a number of these points grow out of Comments  through  to ABA Model Rule 8.4.
“Discrimination” as used in this Rule means conduct or communication that as lawyer intends or reasonable should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in the Rule; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.
“Harassment” as used in this Rule means derogatory or demeaning conduct or communication and includes unwelcome sexual advances, or other conduct or communication unwelcome due to its implicit or explicit sexual content.
“Related to the practice of law” as used in the Rule means occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; or operating or managing a law firm or law practice. Declining representation, limiting one’s practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g).