ABA Model Rule 8.4(g) Efforts in Illinois

Status of Action in Illinois

May 2024
Status – The Illinois Supreme Court adopted an amendment to its misconduct rule.

On May 30, 2024, the Illinois Supreme Court issued an order amending Illinois Rules of Professional Conduct Rule 8.4(j). The amendment means the Illinois misconduct rule now closely mirrors ABA Model Rule 8.4(g). Changes to the Illinois rule include lowering the requisite standard on attorneys for harassing or discriminatory acts to one of negligence (“reasonably should know”),  eliminating the requirement of a prior adjudication with a final judgment with no further rights of judicial review as a precondition for an attorney to be disciplined for harassment or discrimination, and expanding the conduct that could lead to a violation of the rule to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others when representing clients; operating or managing a law firm or law practice; and participating in law-related professional activities or events, including law firm or bar association educational or social events.”

September 2023

After six years, the Illinois State Bar Association reversed course and has now approved a version of ABA Model Rule 8.4(g) for consideration by the Illinois Supreme Court. The proposed change, Rule 8.4(j) and Comments [3], [3A], and [3B], hews closely to ABA Model Rule 8.4(g) by changing the standard from one of knowledge to one of negligence (“reasonably should know”) and making the rule applicable to “conduct in the practice of law,” including bar activities and social events. The Illinois Supreme Court Rules Committee is holding a public hearing on this and other proposed rules changes on Wednesday, November 15, 2023, at 10:30 a.m., at the Administrative Office of the Illinois Courts, 222 N. LaSalle Street, 13th Floor, in Chicago. Those wishing to testify at the public hearing may sign up by sending an email to RulesCommittee@illinoiscourts.gov no later than Wednesday, November 8, 2023. The committee is also accepting public comments on the proposed change. Written comments must be submitted no later than Wednesday, November 8, 2023, to RulesCommittee@illinoiscourts.gov or via mail to: Committee Secretary, Supreme Court Rules Committee, 222 N. LaSalle Street, 13th Floor, Chicago, IL 60601.

CLS’ Center for Law and Religious Freedom has prepared an informational document explaining ABA Model Rule 8.4(g) and why Illinois should not adopt its proposed Rule 8.4(j), which closely resembles ABA Model Rule 8.4(g). Attorneys may file their own comments opposing adoption of Proposed Rule 8.4(j) by using this sample comment letter as a model, which can also be downloaded in Word, or by formulating their own comments using any or all these ten talking points. Comments can be as simple as the following: “I oppose adoption of Proposed Rule 8.4(j) because it threatens the First Amendment rights of Illinois attorneys. Existing Rules 8.4(d) and 8.4(j) already adequately addresses discrimination on the basis of sex, race, age, religion, national origin, disability, sexual orientation, or socioeconomic status. I respectfully request the Committee reject greatly expanding the current rule by adopting Proposed Rule 8.4(j).”

January 2017
Christian Legal Society filed a comment letter with the Illinois Supreme Court, which is considering adopting ABA Model Rule 8.4(g).

December 2016
The Illinois Supreme Court’s Committee on Professional Responsibility is considering a change to its misconduct rule, Illinois Rules of Professional Conduct Rule 8.4(j).

The Illinois State Bar Association, at its December meeting, noted its opposition to ABA Model Rule 8.4(g). Further information can be found by reading the following articles: ISBA Assembly Opposes Adoption of 8.4(g) in Illinois and Proposed rule on harassment and discrimination opposed by Illinois Bar members.

Proposed Rule Changes in Illinois

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) 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 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. Nor shall a lawyer give or lend anything of value to a judge, official, or employee of a tribunal, except those gifts or loans that a judge or a member of the judge’s family may receive under Rule 65(C)(4) of the Illinois Code of Judicial Conduct. Permissible campaign contributions to a judge or candidate for judicial office may be made only by check, draft, or other instrument payable to or to the order of an entity that the lawyer reasonably believes to be a political committee supporting such judge or candidate. Provision of volunteer services by a lawyer to a political committee shall not be deemed to violate this paragraph.

(g) present, participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.

(h) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission.

(i) avoid in bad faith the repayment of an education loan guaranteed by the Illinois Student Assistance Commission or other governmental entity. The lawful discharge of an education loan in a bankruptcy proceeding shall not constitute bad faith under this paragraph, but the discharge shall not preclude a review of the lawyer’s conduct to determine if it constitutes bad faith.

(j) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer’s professional activities. No charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.

(k) if the lawyer holds public office:

(1) use that office to obtain, or attempt to obtain, a special advantage in a legislative matter for a client under circumstances where the lawyer knows or reasonably should know that such action is not in the public interest;

(2) use that office to influence, or attempt to influence, a tribunal to act in favor of a client; or

(3) represent any client, including a municipal corporation or other public body, in the promotion or defeat of legislative or other proposals pending before the public body of which such lawyer is a member or by which such lawyer is employed.

Adopted July 1, 2009, effective January 1, 2010.

Current Comment
[1] Lawyers are subject to discipline when they 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, 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. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. 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 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.

[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 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 lawyers. 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.

Proposed Rule
It is professional misconduct for a lawyer to:

(j) engage in conduct in the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, military or veteran status, pregnancy, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation. This paragraph does not preclude or limit the giving of advice, assistance, or advocacy consistent with these Rules.

Comment
[3] Discrimination and harassment by lawyers in violation of paragraph (j) undermine confidence in the legal profession and the legal system. Conduct in the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others when representing clients; operating or managing a law firm or law practice; and participating in law-related professional activities or events, including law firm or bar association educational or social events. Conduct protected by the Constitution of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.

[3A] The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective. See Scope, paragraph [14]. Discrimination means harmful verbal or physical conduct directed at another person or group that manifests bias or prejudice on the basis of any characteristics identified in paragraph (j). Harassment includes conduct directed at another person or group that is invasive, pressuring, or intimidating in relation to any characteristic identified in paragraph (j). It 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 and case law may guide application of paragraph (j) and the evaluation of whether specific conduct constitutes discrimination or harassment. In addition, any judicial or administrative tribunal findings involving the same conduct may be considered in assessing whether a lawyer has violated paragraph (j). A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (j).

[3B] Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating paragraph (j) by, for example, implementing initiatives to encourage recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations. A lawyer does not violate paragraph (j) 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. See Rule 1.5(a). Lawyers should be mindful of their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).