ABA Model Rule 8.4(g) Efforts in Tennessee

Status Of Action In Tennessee 

May 2018
Status – The Tennessee Supreme Court denied the petition to adopt ABA Model Rule 8.4(g) on April 23, 2018.

CLS’ Kim Colby was featured on The Federalist Society Blog discussing the Tennessee Supreme Court’s rejection of ABA Model Rule 8.4(g).

April 2018
The Supreme Court of Tennessee issued an Order on April 23, 2018, denying the petition of the Tennessee Board of Professional Responsibility and the Tennessee Bar Association to adopt new Rule 8, RPC 8.4(g).

March 2018
The period for submitting comments to the Tennessee Supreme Court regarding adoption of proposed new RPC 8.4(g) closed on March 21, 2018. On that day, the Board of Professional Responsibility of the Tennessee Supreme Court (“the Board”) and the Tennessee Bar Association (“TBA”) filed a comment letter in further support of their joint petition. By this comment, the Board and the TBA amended their joint proposed language for the new RPC 8.4(g).

On March 16, 2018, the Tennessee Attorney General filed a comment letter with the Tennessee Supreme Court in which it opined that both ABA Model Rule 8.4(g) and Tennessee’s proposed version, if adopted, would violate the constitutional rights of Tennessee attorneys and would conflict with existing Tennessee Rules of Professional Conduct.

January 2018
CLS filed its comment letter with the Tennessee Supreme Court on January 31, 2018.

November 2017
On November 15, 2017, the Board and the TBA filed a joint petition with the Tennessee Supreme Court asking it to adopt a new Tennessee Supreme Court Rule 8, RPC 8.4(g). The proposed new RPC 8.4(g) is essentially ABA Model Rule 8.4(g) with two added sentences, purportedly to deal with First Amendment concerns. In summary, the TBA and the Board are asking the Tennessee Supreme Court to adopt ABA Model Rule 8.4(g) with a modification to “protect speech,” which the modification actually does not do.

On November 21, 2017, the Tennessee Supreme Court issued an Order seeking public comment on the proposed rule. Comments are due March 21, 2018. Written comments may be emailed to appellatecourtclerk@tncourts.gov or mailed to: James M. Hivner, Clerk Re: Tenn. Sup. Ct. R. 9, section 32 Tennessee Appellate Courts 100 Supreme Court Building 401 7th Avenue North Nashville, TN 37219-1407 and should reference the docket number No. ADM2017-02244.

August 2017
One of the agenda items at the most recent meeting (June 17, 2017) of the Tennessee Bar Association (“TBA”) Board of Governors was a Report and Recommendations of the TBA Standing Committee on Ethics and Professional Responsibility (“the Ethics Committee”) regarding Tennessee Rule of Professional Conduct 8.4(g). In summary, the Ethics Committee recommended adopting an anti-harassment and anti-discrimination ethics rule. According to the report, the Ethics Committee had spent several months debating and discussing whether to recommend pursuing a revision of Tennessee’s misconduct rule, TN RPC 8.4, along the lines of the ABA’s Model Rule 8.4(g). After much discussion, the Ethics Committee voted 15 to 9 in favor of amending TN RPC 8.4, providing the proposed rule contained additional language “unique to Tennessee … to make very clear the scope of protected First Amendment activity lawyers would still retain.” Find the full Report and Recommendation here.

Proposed Rule Changes in Tennessee

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 a tribunal or a governmental agency or official on grounds unrelated to the merits of, or the procedures governing, the matter under consideration;

(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) knowingly fail to comply with a final court order entered in a proceeding in which the lawyer is a party, unless the lawyer is unable to comply with the order or is seeking in good faith to determine the validity, scope, meaning, or application of the law upon which the order is based.

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. Although under certain circumstances a single offense reflecting adversely on a lawyer’s fitness to practice – such as a minor assault – may not be sufficiently serious to warrant discipline, a pattern of repeated offenses, even ones that are 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 on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic 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).

[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 RPC 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] Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law. In some circumstances, however, prosecutors are authorized by law to use, or to direct investigative agents to use, investigative techniques that might be regarded as deceitful. This Rule does not prohibit such conduct.

[6] The lawful secret or surreptitious recording of a conversation or the actions of another for the purpose of obtaining or preserving evidence does not, by itself, constitute conduct involving deceit or dishonesty. See RPC 4.4.

[7] 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.

[8] Paragraph (f) precludes a lawyer from assisting a judge or judicial officer in conduct that is a violation of the rules of judicial conduct. A lawyer cannot, for example, make a gift, bequest, favor, or loan to a judge, or a member of the judge’s family who resides in the judge’s household, unless the judge would be permitted to accept, or acquiesce in the acceptance of such a gift, favor, bequest, or loan in accordance with RJC 3.13 of the Code of Judicial Conduct.

[9] In both their professional and personal activities, lawyers have special obligations to demonstrate respect for the law and legal institutions. Normally, a lawyer who knowingly fails to obey a court order demonstrates disrespect for the law that is prejudicial to the administration of justice. Failure to comply with a court order is not a disciplinary offense, however, when it does not evidence disrespect for the law either because the lawyer is unable to comply with the order or the lawyer is seeking in good faith to determine the validity, scope, meaning, or application of the law upon which the order is based.

Proposed Rule 8.4 Misconduct
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 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 and case law 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. Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer acts as an advocate, such as litigation.

[4a] Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

[5a] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g).

[5b] 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.

[5c] Lawyers should be mindful of their professional obligations under RPC 6.1 to provide legal services to those who are unable to pay, and their obligation under RPC 6.2 not to avoid appointments from a tribunal except for good cause. Nevertheless, a lawyer does not engage in conduct that harasses or discriminates based on socioeconomic status merely by charging and collecting reasonable fees and expenses for a representation.

[5d] A lawyer’s representation of a client does not constitute an endorsement by he lawyer of the client’s views or activities. See RPC 1.2(b).