ABA Model Rule 8.4(g) Efforts in Hawaii

Status of Action in Hawaii

October 2021
Status – The Hawai’i Supreme Court adopted an amendment to Hawai’i Rules of Professional Conduct Rule 8.4 that specifically addresses sexual harassment. 

On October 26, 2021, the Hawai’i Supreme Court issued an Order amending Rule 8.4 of the Hawai’i Rules of Professional Conduct by adopting new subsection (h) and Comment [7]. New Rule 8.4(h) is not ABA Model Rule 8.4(g) or a variation thereof as it specifically addresses sexual harassment by an attorney in his or her professional capacity. In issuing this order, it appears that the Hawai’i Supreme Court rejected the proposed Rule 8.4(h) and instead adopted proposed new Rule 4.5 as new Rule 8.4(h).

July 2021
The Hawai’i Supreme Court announced a comment period on a proposed new rule – Rule 4.5 of the Hawai’i Rules of Professional Conduct. This rule would make it professional misconduct for a lawyer to engage in sexual harassment in a professional capacity.

December 2020
On December 11, the Hawai’i chapter of Christian Legal Society submitted a supplemental comment letter to the Hawai’i Supreme Court. The purpose of supplemental letter was to provide the Hawai’i Supreme Court with the December 8, 2020, decision by the United States District Court for the Eastern District of Pennsylvania in Greenberg v. Haggerty, 2020 WL 7227251 (E.D. Pa. 2020) in which the court held that Pennsylvania’s newly-adopted Rule of Professional Conduct Rule 8.4(g) violates the free speech clause of the First Amendment and granted a preliminary injunction temporarily enjoining the Disciplinary Board of the Supreme Court of Pennsylvania from enforcing the new rule.

September 2020
On September 15, Christian Legal Society submitted its comment letter to the Hawaii Supreme Court in response to the court’s request for comments on its proposal to amend court rules to address harassment and discrimination within the practice of law.

CLS’ Center for Law and Religious Freedom has prepared an informational document explaining why the Hawaii Supreme Court should not adopt Proposed Rule 8.4(h), either as a black letter rule or as part if its guidelines. Lawyers may file their own comments opposing adoption of Propose Rule 8.4(h) by using this sample comment letter or by formulating their own comments using these talking points.

Written comments should be submitted no later than Friday, September 25, 2020, to the Judiciary Communications & Community Relations Office. Comments may be submitted via the Judiciary’s website (proposed rules title is “Proposal to Amend Rules of Court to Address Harassment and Discrimination within the Practice of Law”), or by mail to 417 South King Street, Honolulu, HI 96813, or by facsimile to (808) 539-4801.

July 2020
The Hawaii Supreme Court announced it is soliciting public comment on three proposals from the Commission on Professionalism to address harassment and discrimination within the practice of law.

The first proposal would amend Rule 22 of the Rules of the Supreme Court of the State of Hawaii to make education on harassment and discrimination mandatory and to require at least 1 hour of continuing legal education every 3-year period be devoted to awareness and prevention of bias, harassment, and discrimination.

The second proposal is to amend Rule 8.4 of the Hawaii Rules of Professional Conduct to add a new subsection providing that it is misconduct for a lawyer, while acting in a professional capacity, to engage in conduct that the lawyer knows or reasonably should have known is harassment or discrimination on the basis of a person’s protected status.

The third proposal would establish a new Section 15 in the Guidelines of Professional Courtesy and Civility for Hawaii Lawyers to set forth language providing that a lawyer should refrain from engaging in the conduct described in the proposed amendment to Rule 8.4.in the event that the amendment to Rule 8.4 of the Hawaii Rules of Professional Conduct is not adopted.

Written comments regarding the Commission’s proposed amendments should be submitted no later than Friday, September 25, 2020, to the Judiciary Communications & Community Relations Office. Comments may be submitted by mail to 417 South King Street, Honolulu, HI 96813, by facsimile to 539-4801, or via the Judiciary’s website (proposed rules title is “Proposal to Amend Rules of Court to Address Harassment and Discrimination within the Practice of Law”).

Rule Changes in Hawaii

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

(a) – (g) [NO CHANGE]

(h) In a professional capacity, a lawyer shall not engage in sexual harassment.

“Professional capacity” under this Rule means acts, including communications, occurring in (1) the course of a client representation; (2) interactions with coworkers, court personnel, jurors, and witnesses; (3) the operation or management of a law firm, law practice, or organization with which the lawyer is employed, including acts at events sponsored by the law firm, law practice, or organization; and/or (4) bar association, bar organization, legal education conferences or events.

“Sexual harassment” under this Rule means unwelcome sexual advances, requests for sexual favors, and/or other verbal or physical harassment of a sexual nature which a reasonable lawyer would know are offensive.

New Comment
[1] – [6] [NO CHANGE]

[7] Lawyers have a duty to educate themselves on the social norms of the community, including what is likely to be considered sexual harassment, and to avoid such conduct.

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

(a) 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) Reserved;

(e) state or imply an ability to influence improperly a government agency or official; or

(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) fail to cooperate during the course of an ethics investigation or disciplinary proceeding.

Former Comment
[1] Lawyers violate Rule 8.4(a) of these Rules, and are subject to discipline, when they attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or violate the Rules 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] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. This is true whether or not the illegal conduct results in a criminal conviction. However, some kinds of offense carry no such implication. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[3] 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 1.2(d) of these Rules 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.

[4] 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 and ethical obligations of an attorney. 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.

[5] An attorney who is the subject of an ethics investigation or disciplinary proceeding has an ethical duty to timely cooperate with that investigation or proceeding. Examples of failure to cooperate are described in Rule 2.12A(a) of the Rules of the Supreme Court of the State of Hawaiʻi.

[6] Unless authorized by a court, an attorney who uses the judiciary’s electronic filing or data storage system to gain access to confidential information filed in a case to which the attorney is not a party and/or an attorney of record may be subject to discipline under Rule 8.4(c) of this Rule.

Proposed Rule 8.4(h) Misconduct – July 2020
It is professional misconduct for a lawyer to:

(h) engage in conduct while acting in a professional capacity that the lawyer knew or reasonably should have known is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, gender identity and/or gender expression. This paragraph shall neither limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules, nor does it infringe on any constitutional right of a lawyer, including advocacy on matters of public policy, the exercise of religion, or a lawyer’s right to advocate for a client.

Proposed Comment
[7] “Professional capacity” as used in this rule includes (1) acts occurring in the course of representing clients; (2) interacting with witnesses, coworkers, court personnel, lawyers, or others, while engaged in the practice of law; (3) or operating or managing a law firm or law practice.

[8] “Harassment” on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, gender identity and/or gender expression as used in this section means derogatory, offensive, obnoxious, or demeaning conduct or communication and includes, but is not limited to, unwelcome sexual advances, or other conduct or
communication unwelcome due to its implicit or explicit sexual content, or any conduct defined in HRS § 604-10.5 and HRS § 711-1106.

[9] “Discrimination” on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, gender identity and/or gender expression as used in this section means conduct or communication that a lawyer knows or reasonably should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in this paragraph; 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.

Proposed New Section 15 to the Guidelines of Professional Courtesy and Civility for Hawaii Lawyers
Section 15. Harassment or Discrimination.
A lawyer should refrain from engaging in conduct while acting in a professional capacity that the lawyer knew or reasonably should have known is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, gender identity and/or gender expression. This paragraph shall neither limit the ability of the lawyer to accept, decline, or withdraw from representation consistent with other Rules, nor shall it infringe on any constitutional right of a lawyer or client.

Proposed New Rule 4.5 Sexual Harassment – July 2021
In a professional capacity, a lawyer shall not engage in sexual harassment.

“Professional capacity” under this Rule means acts, including communications, occurring in (1) the course of a client representation; (2) interactions with coworkers, court personnel, jurors, and witnesses; (3) the operation or management of a law firm, law practice, or organization with which the lawyer is employed, including acts at events sponsored by the law firm, law practice, or organization; and/or (4) bar association, bar organization, or legal education conferences or events. “Sexual harassment” under this Rule means unwelcome sexual advances, requests for sexual favors, and/or other verbal or physical harassment of a sexual nature which the attorney reasonably should know are offensive.

COMMENTS: [1] Sexual harassment under this Rule does not include simple teasing, offhand comments, or isolated incidents.