August 20, 2018

Model Rule of Professional Conduct 8.4

Revised Resolution 109 Adopted by ABA HOD

On August 8, 2016 the ABA House of Delegates approved resolution 109 to amend Model Rule 8.4 to bring into the blackletter of the ABA Model Rules of Professional Conduct an anti-harassment and antidiscrimination provision.   See Video

Revised HOD Resolution 109 Filed August 3, 2016

In anticipation of the meeting of the House of Delegates on Monday, August 8, 2016, and in response to the thoughtful concerns that have been raised by ABA entities and others, the sponsors of House Resolution 109, which would amend Model Rule of Professional Conduct 8.4 to create new paragraph (g) and add new Comments, are filing a revised version with the Committee on Rules and Calendar.

In addition to being sponsored by the Association’s Standing Committee on Ethics and Professional Responsibility, Resolution 109 as revised is supported by the Standing Committee on Professional Discipline, the Standing Committee on Client Protection, the Standing Committee on Professionalism, and the Center for Professional Responsibility Diversity Committee.  We thank these Committees for their hard and thoughtful work on this important resolution.

The most important revisions are:

1.  A knowledge requirement has been incorporated. The proposed rule now prohibits conduct a lawyer “knows or reasonably should know” is harassment or discrimination.  This responds to concerns expressed by some regarding the scope of the prior proposal.  These two terms – “knows” and “reasonably should know” – are defined in the Model Rules, and this dual standard – “knows or reasonably should know” – is widely used throughout the Model Rules.  See Model Rules 1.13(f), 2.3(b), 2.4(b), 3.6(a), 4.3 and 4.4(b).

2.  Jury selection concerns have been directly addressed. The revisions also include inserting into new Comment [5] what some have called “The Batson Sentence” from current Comment [3] to Rule 8.4.  The sentence reads: “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.”

3. Moving the “legitimate advocacy” exception into the rule itself from the Comments, and expanding it to also cover “advice”. In addition, the “legitimate advocacy” exception has been moved into the black letter of the Rule.  It provides that new paragraph (g) does not preclude legitimate advice or advocacy consistent with these Rules.

4. Eliminating the “perceived” language.  The revisions include deleting from the definition of discrimination references to “membership” and “perceived membership” in one or more of the listed groups, as such language was unnecessary and some found it confusing.

revised resolution can be found here. 

Below are a list of Co-Sponsors and Supporters of Resolution 109.

Updates

Below are a list of Co-Sponsors and Supporters of Resolution 109:

Co-Sponsors

  • Standing Committee on Ethics and Professional Responsibility
  • Section of Civil Rights & Social Justice
  • Commission on Diversity and Inclusion 360 
  • Commission on Disability Rights
  • Commission Sexual Orientation and Gender Identity
  • Commission on Women in the Profession
  • Commission on Racial and Ethnic Diversity in the Profession

Supporters Groups: ABA

  • CPR Diversity Committee
  • Coalition on Racial and Ethnic Justice
  • Center for Racial and Ethnic Diversity
  • Commission on Hispanic Legal Rights and Responsibilities
  • Council for Racial and Ethnic Diversity in the Educational Pipeline
  • Government and Public Sector Lawyers Division
  • Law Practice Division
  • Law Student Division
  • Section of Criminal Justice
  • Section of Dispute Resolution
  • Section of Labor and Employment Law
  • Section of Litigation
  • Section of Real Property, Trust and Estate Law
  • Section of State and Local Government Law
  • Section of Tort Trial and Insurance Practice
  • National Conference of the Administrative Law Judiciary
  • National Conference of State Trial Judges
    Senior Lawyers Division
  • Special Committee on Hispanic Legal Rights and Responsibilities
  • Standing Committee on Client Protection
  • Standing Committee on Discipline
  • Standing Committee on Professionalism
  • Standing Committee on Specialization
  • Standing Committee on Legal Aid and Indigent Defense
  • Solo, Small Firm and General Practice Division
  • Young Lawyers Division

Supporters Outside Organizations

Current ABA President

  • Paulette Brown, Morristown, NJ

Supporters: Former ABA Presidents

  • Philip S Anderson, Little Rock, AR
  • Dennis Archer, Detroit, MI
  • Martha W Barnett, Tallahassee, FL
  • Laurel Bellows, Chicago IL
  • Talbot D’Alemberte, Tallahassee, FL
  • Michael S. Greco, Boston, MA
  • Robert J. Grey Jr, Richmond, VA
  • Robert Hirshon, Ann Arbor, MI
  • William C. Hubbard, Columbia, SC
  • Carolyn B. Lamm, Washington, DC
  • William H. Neukon, Seattle, WA
  • Roberta Cooper Ramo, Albuquerque, NM
  • James R. Silkenat, New York, NY

Public Hearing Transcript

Past Roundtables & Public Hearings

  • Sunday, February 7, 2016- San Diego, CA
  • Friday, July 31, 2015 - Chicago, IL

Items Previously Released for Comment

News and Announcements

In an order dated July 14, 2017, the Vermont Supreme Court adopted amendments to its anti-bias provision in Vermont Rule of Professional Conduct 8.4 that are based on amendments to ABA Model Rule of Professional Conduct 8.4(g), adopted by the House of Delegates in August 2016.

Former Vermont Rule 8.4(g), adopted in 1986, prohibited lawyers from discriminating against an individual based on certain factors including race, color, religion, ancestry, national origin, and sex. With the adoption of amendments to Vermont 8.4(g) and new Comments [4], [5], and [6], Vermont both expanded its Rule and provided valuable guidance to lawyers. These amendments were made in an effort to make them uniform with the ABA Model rules and “to incorporate the more specific and detailed language of the ABA amendment and its additions to the Comment,” according to the Reporter’s Notes accompanying the court order adopting the amendments.