The board of governors (BOG) of the Oregon State Bar (OSB) adopted a motion tasking the OSB Legal Ethics Committee (LEC) with determining whether the BOG should amend Oregon Rules of Professional Conduct Rule 8.4(a)(7) to conform more closely with ABA Model Rule 8.4(g). The LEC has formed a subcommittee to study the current Oregon rule in connection with ABA Model Rule 8.4(g).

Rules Committee of Connecticut Superior Court Considers Modified ABA Model Rule 8.4(g)
The Rules Committee of the Connecticut Superior Court met on January 11, 2021, and the meeting included discussion of Proposed Rule 8.4(7). Since the committee’s last meeting, both the Statewide Grievance Committee and the Office of Chief Disciplinary Counsel weighed in on the proposed rule. The committee decided to turn the proposal over to a working group to study the proposed rule in light of all the comments and come back to the committee with a proposal that the committee could discuss and potentially act upon. No timeframe was discussed.

Plaintiff Challenging Pennsylvania’s Rule 8.4(g) Speaks Out
Zachary Greenberg, the plaintiff in the lawsuit challenging Pennsylvania’s newly-adopted Rule 8.4(g), wrote a short article in which he discusses the case and explains his reasons for filing the lawsuit.

Massachusetts Supreme Judicial Court Committee Considering Rules Changes Addressing Harassment and Discrimination
The Massachusetts Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct (“Committee”) provided notice that it is seeking public comment on several proposed revisions to the Massachusetts Rules of Professional Conduct. The proposed amendments relate to harassment and discrimination and include changes to Rules 3.4 and 4.4 and their accompanying Comments. The Committee will make its recommendations to the Justices of the Supreme Judicial Court following receipt and review of public comments. Comments are due by February 1, 2021, and should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Chip Phinney, Deputy Legal Counsel, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108. Comments may also be sent by email to chip.phinney@jud.state.ma.us. Comments received will be made available to the public.

South Carolina Bar Again Considering Amending Misconduct Rule
On November 20, the Professional Responsibility Committee of the South Carolina Bar voted 18-11 to forward a proposed rule, Proposed Rule 8.4(h), to the South Carolina Bar House of Delegates for consideration at its meeting during the South Carolina Bar Virtual Convention, which is being held January 19-22, 2021.

Rules Committee of Connecticut Superior Court Considers Modified ABA Model Rule 8.4(g)
On November 16, the Rules Committee of the Connecticut Superior Court met for its regularly scheduled meeting, and Proposed Rule 8.4(7), Connecticut’s version of ABA Model Rule 8.4(g), was on the agenda. At the meeting, the Rules Committee chose to table discussion of the proposed rule until its next meeting, which will be January 11, 2021. The reasons for the postponement of the discussion appear to be twofold: (1) the committee members did not have sufficient time prior to the November meeting to review all of the comments submitted; and (2) the fact that the proposed rule was never referred to the disciplinary counsel or the state grievance committee for consideration.

The Committee also agreed to permit additional comments from the general public until close of business on December 4, 2020. Connecticut attorneys who have not already done so should submit comments opposing the proposed rule. CLS has prepared an updated background document that provides information on ABA Model Rule 8.4(g) and why Connecticut should not adopt Proposed Rule 8.4(7). Comments by email to RulesCommittee@jud.ct.gov.

CLS Files Comment Letter in Connecticut
On November 2, CLS submitted a comment letter to the Rules Committee of the Connecticut Superior Court opposing adoption of Proposed Rule 8.4(7). CLS’ Center for Law and Religious Freedom has prepared an informational document explaining why the Connecticut Superior Court should not adopt Proposed Rule 8.4(7).

Connecticut attorneys should submit comments opposing the rule to the Rules Committee of the Superior Court. CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why Connecticut should not adopt Proposed Rule 8.4(7). In the alternative, attorneys can submit comments using this sample comment letter as a model, which can also be downloaded here. Comments should be sent to the Rules Committee no later than November 12, 2020, by emailing it to RulesCommittee@jud.ct.gov.

THE NEXT FRONT FOR THE MINISTERIAL EXCEPTION
An Indiana music director in a same-sex marriage sued his church employer for employment discrimination by creating a hostile work environment because of his sexual orientation. The Supreme Court issued a strong ruling this summer in favor of the “ministerial exception,” which is the right of churches to hire and fire their ministers without government interference. But the music director argued, and a Seventh Circuit panel agreed, that the ministerial exception does not protect churches from lawsuits for creating a hostile work environment. CLS filed an amicus brief in support of the Catholic parish’s petition for rehearing en banc. Joining the CLS brief, which was written by Professor Tom Berg and his students at the St. Thomas Religious Liberty Appellate Clinic, were the Serbian Orthodox Diocese of New Gracanica—Midwestern America, Greek Orthodox Metropolis of Chicago, Orthodox Church in America Diocese of the Midwest, The Synod of Bishops of the Russian Orthodox Church Outside of Russia, and Agudath Israel of America.

DEFENDING THE RELIGIOUS FREEDOM RESTORATION ACT
On October 6, the Supreme Court heard oral argument in a case in which CLS filed a friend-of-the-court brief urging that the Religious Freedom Restoration Act (RFRA) allows money damages against individual federal employees when they violate a religious person’s rights under RFRA.

Rules Committee of Connecticut Superior Court Considering Amending its Misconduct Rule
On September 14, the Rules Committee of the Superior Court of Connecticut considered a proposal from an individual attorney to adopt ABA Model Rule 8.4(g), as well as a substitute proposal from the Connecticut Bar Association (CBA) to adopt proposed Rule 8.4(7) to the Connecticut Rules of Professional Conduct. The CBA proposal came from the CBA 8.4(7) Working Group, which met numerous times to develop its Proposed Amended Rule 8.4(7). The CBA noted that between June 15 and September 1, 2020, the Connecticut Bar Association Diversity and Inclusion Committee, Standing Committee on Professional Ethics, Young Lawyers Section, Human Rights and Responsibilities Section, LGBT Section, Women in the Law Section, Veterans and Military Affairs Section, Professionalism Committee, Professional Discipline Section, Litigation Section, and Labor and Employment Section voted approval of Proposed Amended Rule 8.4(7).

State Bar of Texas Board of Directors Discusses ABA Model Rule 8.4(g)
The State Bar of Texas Board of Directors held a meeting on September 10, 2020, where one of the items discussed was ABA Model Rule 8.4(g). After hearing from numerous speakers, the directors voted to refer the model rule to the board’s Discipline and Client Attorney Assistance Program (DCAAP) Committee. The DCAAP Committee will study the model rule, along with existing Rule 5.08 of the Texas Disciplinary Rules of Professional Conduct, and will report back to the board its recommendations, if any, at a future meeting. The committee will also consider public input that was submitted before and during the board meeting. On September 9, one day before the State Bar of Texas Board of Directors was to meet to discuss the referral of ABA Model Rule 8.4(g) to the board’s Discipline and Client Attorney Assistance Program Committee, Texas Attorney General Ken Paxton warned the board of directors that the model rule is unconstitutional and violates attorneys’ free speech and religious rights.

Lawsuit Challenges Constitutionality of Pennsylvania’s 8.4(g)
On August 6, 2020, the Hamilton-Lincoln Law Institute (HHLI) filed a lawsuit in the U.S. District Court, Eastern District of Pennsylvania, challenging the constitutionality of Pennsylvania’s newly-adopted Rule of Professional Conduct Rule 8.4(g). HHLI filed the suit on behalf of Pennsylvania attorney, Zachary Greenberg. The suit alleges that Mr. Greenberg works “for a non-profit organization that advocates on behalf of students’ constitutional rights, regularly speaks at Continuing Legal Education (“CLE”) and non-CLE events on a variety of hot-button legal issues including the constitutionality of hate speech regulation, Title IX’s effect on the Due Process rights of individuals accused of sexual assault and misconduct, campaign finance speech restrictions, university policies on fraternity and sorority misconduct, professorial academic freedom, university regulation of hateful expression online, attorney free speech rights, and abusive public records requests. Rule 8.4(g) threatens to impose civil sanction on [Mr. Greenberg] if an audience member misconstrues his speech as a manifestation of bias or prejudice and registers a complaint with the Office of Disciplinary Counsel.” The new Pennsylvania Rule 8.4(g) is set to take effect on December 8, 2020.

Model Rule 8.4(g) “is intended to combat discrimination and harassment
and to ensure equal treatment under the law,” notes Cassandra Burke
Robertson, Cleveland, OH, chair of the Appellate Litigation Subcommittee
of the Section’s Civil Rights Litigation Committee. While it serves important
goals, “the biggest question about Rule 8.4(g) has been whether it
unconstitutionally infringes on lawyers’ speech rights—and after the Court’s
decision in Becerra, it increasingly looks like the answer is yes,” Robertson
concludes.

C. Thea Pitzen, “First Amendment Ruling May Affect Model Rules of Professional Conduct: Is Model Rule 8.4(g) Constitutional?,” ABA Section of Litigation Top Story (Apr. 3, 2019), https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2019/first-amendment-ruling-may-affect-model-rules-prof-cond/.

Professor Josh Blackman has analyzed the ABA’s opinion and has written an article showing that the ABA opinion actually confirms that the concerns many have about ABA Model Rule 8.4(g) are well-founded.

Hawaii Considering Rules Changes
On July 14, the Hawaii Supreme Court announced it is soliciting public comment on three proposals from the Commission on Professionalism. One proposal would amend Rule 22 of the Rules of the Supreme Court of the State of Hawaii. The second proposal is to amend Rule 8.4 of the Hawaii Rules of Professional Conduct. The third proposal would establish a new Section 15 in the Guidelines of Professional Courtesy and Civility for Hawaii Lawyers 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 by mail to 417 South King Street, Honolulu, HI 96813, by facsimile to 539-4801, or via the Judiciary’s website.

Alaska Publishes Notice of New Proposed Rule Change
The Alaska Bar Association provided notice in the April-June 2020 Alaska Bar Rag (pages 6-8) that it is accepting comments on proposed Alaska Rules of Professional Conduct Rule 8.4(f)-(g). The Alaska Rules of Professional Conduct Committee had previously, in May 2019, sent a proposed rule – Rule 8.4(f) – to the Board of Governors (“the Board”) and then, after receiving substantial comments, asked the Board not to send the proposed rule to the Alaska Supreme Court but rather to remand it to the Committee, which the Board did in September 2019, for further review. The Committee has finished its review and proposed new rules to the Board, which the Board has voted to publish for comment.

Comments regarding the proposed rule should be submitted to Bar Counsel either by email at shanahan@alaskabar.org or by mail to the Alaska Bar Association, P.O. Box 100279, Anchorage, AK 99510. Comments should be received no later than August 10, 2020.

Also in the April-June 2020 Alaska Bar Rag is an article offering a dissenting view on proposed Rule 8.4(f)-(g).

Pennsylvania Adopts Version of ABA Model Rule 8.4(g)
On June 8, the Pennsylvania Supreme Court issued an Order adopting a highly-modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone. One justice dissented. For almost four years, the Disciplinary Court of the Supreme Court of Pennsylvania (“Disciplinary Board”) has considered versions of ABA Model Rule 8.4(g). The Board previously decided not to forward the 2016 and 2018 proposed rules to the Supreme Court. Though having expressed some concern about possible First Amendment issues, both the Disciplinary Board and the Pennsylvania Supreme Court apparently forgot about those previous concerns when adopting this most recent version, as it contains a broad definition of the phrase “conduct in the practice of law.” Professor Josh Blackman wrote an excellent article summarizing the history of the Rule 8.4(g) proposals in Pennsylvania and critiquing the adopted rule.

Good Read on Why States Should not Adopt ABA Model Rule 8.4(g)
Jurist published an article by Daniel Ortner of the Pacific Legal Foundation explaining the reasons why states should not adopt ABA Model Rule 8.4(g).

South Dakota Supreme Court Rules Unanimously Rejects Proposed Rule 8.4(g)
On March 9, the South Dakota Supreme Court announced in a letter to the South Dakota State Bar that the Court had unanimously denied the proposed Rule 8.4(g), which was an alternative version of ABA Model Rule 8.4(g). Specifically, the Court explained it “is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.” The Court further announced the creation of a Commission “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.” The Commission will consist of “justices, judges, lawyers, and others in the justice system.” It is to be in place by April 15, 2020, and provide its report by the end of 2020.

Kim Colby Featured in Federalist Society Blogpost
On November 26, Kim Colby published an article on The Federalist Society Blog post explaining why the Iowa Supreme Court should not adopt ABA Model Rule 8.4(g).

New Mexico Supreme Court Amends Professional Conduct Rule
The New Mexico Supreme Court amended New Mexico Rules of Professional Conduct Rule 8.4 to include a prohibition on discrimination and harassment. The provision largely tracks ABA Model Rule of Professional Conduct 8.4(g); however, it is not ABA Model Rule 8.4(g). The New Mexico rules include several verbal changes and, substantively, the protections of the black letter of the New Mexico rule do not extend to persons based on their socioeconomic status. New Mexico also adopted Comments to explain the new provision. These Comments track those of ABA Model Rule 8.4(g), but are not identical to them.

Iowa Supreme Court Extends Comment Period
On September 27, the Iowa Supreme Court issued an order extending the public comment period until December 30, 2019. The Iowa State Bar Association and the Iowa Academy of Trial Lawyers requested the 90-day extension, which was granted by the court. As a reminder, two quick ways to submit comments are by (1) signing and emailing to rules.comments@iowacourts.gov this Iowa comment letter, which provides basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing Iowa Rules of Professional Conduct Rule 32:8.4 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter.

Colorado Supreme Court Amends Misconduct Rule 
On September 19, the Colorado Supreme Court adopted an amendment to Rule 8.4 of the Colorado Rules of Professional Conduct. Specifically, the Colorado Supreme Court added new subsection (h) and Comment [5] to its current Rule 8.4. It should be noted that the Rule 8.4 amendment in Colorado is not ABA Model Rule 8.4(g) as it specifically addresses sexual harassment in connection with a lawyer’s professional activities.

Pennsylvania Once Again Seeking Comments on Proposed Rule Change
The Disciplinary Board of the Supreme Court of Pennsylvania is again considering a proposed rule change. On September 4, the Disciplinary Board announced it was holding a public comment period on a proposed change to Rule 8.4 of the Pennsylvania Rules of Professional Conduct. The proposed change would add new subsection (g), which addresses harassment and discrimination. This announcement by the Disciplinary Board follows a notice of the proposed amendment published in The Pennsylvania Bulletin on August 31, 2019.

Any interested parties may submit comments by email to Dboard.comments@pacourts.us, by mail to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, or by facsimile to number (717-231-3381). Comments must be received on or before September 30, 2019, to be considered. Two quick ways to comment are (1) by signing and emailing this Pennsylvania comment letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short letter or email simply stating that you oppose changing Pennsylvania Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g). CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why the Pennsylvania should not adopt the proposed rule.

Alaska Bar Association Board of Governors Remands Proposed Rule 8.4(f) to Rules Committee
On September 5, the Board of Governors of the Alaska Bar Association unanimously voted to remand proposed Alaska Rule 8.4(f) back to the Alaska Bar Association’s Rules of Professional Conduct Committee for further action. This decision follows the recommendation made last week by the Committee. At the Board of Governors’ meeting, before the vote, the Board heard from a handful of members of the Alaska Bar regarding the proposed rule.

Alaska Bar Association Rules of Professional Conduct Committee Votes to Reconsider Proposed Rule 8.4(f)
Also on August 29, the Chair of the Alaska Bar Association’s Rules of Professional Conduct Committee (“Rules Committee”) sent a letter to the president of the Alaska Bar Association advising him that the Rules Committee, after having reviewed the “unprecedented” number of comments, voted 8-1 to recommend to the Board of Governors that it not submit the proposed Rule 8.4(f) to the Supreme Court, but instead remand the matter back to the Rules Committee for further drafting.

Alaska Bar Association Announces Hearing Date
On August 22, the Alaska Bar Association announced that the Alaska Bar Association Board of Governors will hear, on September 5, 2019, at 1 p.m., Bar members’ comments on whether to adopt the proposed Rule of Professional Conduct Rule 8.4(f). Proposed Rule 8.4(f) would effectively impose the highly problematic ABA Model Rule 8.4(g) on members of the Alaska Bar. Alaska Bar members wishing to provide two-minute comments should be at the Bar Association’s conference room located at 840 K Street, Ste. 100, Anchorage, before 1 p.m. on September 5.

CLS Files Comment Letter in Iowa
On August 10, CLS submitted a comment letter opposing the proposal to amend the Iowa Rules of Professional Conduct to include ABA Model Rule 8.4(g). Two quick ways to submit comments are by (1) signing and emailing to rules.comments@iowacourts.gov this Iowa comment letter, which provides basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing Iowa Rules of Professional Conduct Rule 32:8.4 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter.

In the alternative, you may file your own comment letter. CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why the Iowa Supreme Court should not adopt the proposed Iowa Rules of Professional Conduct Rule 32:8.4(g).

Alaska Attorney General Files Comment Letter
On August 9, Kevin Clarkson, the Alaska Attorney General, sent a letter to the Board of Governors of the Alaska Bar Association commenting on proposed Alaska Rule 8.4(f). Attorney General Clarkson opined that the Alaska Bar Association should not recommend – and the Alaska Supreme Court should not adopt – the proposed rule, calling the proposed rule “unwise” and “unconstitutional.” On the same day, the AG’s office issued a press release announcing the filing of the letter.

Iowa Supreme Court Considers Adopting ABA Model Rule 8.4(g)
On August 1, the Supreme Court of Iowa issued an Order requesting public comment on proposed amendments to Chapter 32, Iowa Rules of Professional Conduct, including Rule 32:8.4 (Misconduct). According to the Order, the Iowa Supreme Court is considering adopting several of the ABA’s updated model rules so that the Iowa Rules of Professional Conduct “conform to the ABA’s latest model rules.” The proposed amendment to Iowa’s misconduct rule is to adopt ABA Model Rule 8.4(g) in its entirety.

Any interested person, organization, or agency may submit written comments. The deadline for submitting comments is 4:30 p.m. on September 30, 2019. All comments must refer to the specific rule number and line number (for example, Rule 32:8.4(g), lines 44-46 and lines 1-46). Comments may be emailed to rules.comments@iowacourts.gov, must state “Chapter 32 Amendments” in the subject line of the email, and must be sent as an attachment to the email in Microsoft Word format. Comments may also be delivered in person or mailed to the Clerk of the Iowa Supreme Court, 1111 East Court Avenue, Des Moines, Iowa, 50319.

CLS Files Comment Letter in Alaska
In response to the public comment period being held by the Alaska Bar Association, on July 29, 2019, CLS submitted a comment letter opposing the proposal to amend Alaska Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g).

Two quick ways to comment are by (1) signing and emailing to page@alaskabar.org the attached Alaska comment letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing Alaska Rules of Professional Conduct Rule 8.4 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter. In the alternative, you may file your own comment letter. CLS has prepared a short document that provides background on ABA Model Rule 8.4(g) and why the Alaska Bar Association should not adopt the proposed Alaska Rule 8.4(f).

Comments should be submitted to the Bar by email to Bar Counsel at page@alaskabar.org, by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, AK 99501, or by calling Bar Counsel at (907) 272-7469. Comments should be received no later than August 15, 2019.

New Hampshire Supreme Court Amends New Hampshire Rules of Professional Conduct 
On July 15, the New Hampshire Supreme Court announced that it was adopting New Hampshire Rule of Professional Conduct 8.4(g) but that its new rule was not ABA Model Rule 8.4(g). The New Hampshire Advisory Committee on Rules had proposed adoption of a rule closely modeled on ABA Model Rule 8.4(g), but the court declined to adopt the committee’s proposed rule, stating, “In light of the nascent and ongoing discussion regarding the model rule, the court declines to adopt the rule proposed by the Advisory Committee on Rules.”

Kim Colby Featured on The Federalist Society Blog
On June 17, Center Director Kim Colby published an article on The Federalist Society blog discussing why the members of the South Dakota Bar should vote against the proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.

New Maine Rule of Professional Conduct Rule 8.4(g) not ABA Model Rule 8.4(g)
Professor Alberto Bernabe of The John Marshall Law School published an article in which he explains the differences between ABA Model Rule 8.4(g) and the recently adopted Maine Rule of Professional Conduct Rule 8.4(g).

ABA Model Rule 8.4(g) Proponent Shows How the Model Rule Chills Protected Speech
Professor Josh Blackman, an Associate Professor of Law at the South Texas College of Law in Houston who has commented extensively on the Rule 8.4(g) debates, published an article in which he explains how Professor Stephen Gillers of NYU, a proponent of ABA Model Rule 8.4(g), actually demonstrated how Model Rule 8.4(g) chills protected speech.

Colorado Supreme Court to Hold Public Hearing
The Colorado Supreme Court will conduct a public hearing on proposed changes to Rule 8.4 of the Colorado Rules of Professional Conduct on Wednesday, September 18, 2019, at 3:30 p.m. in the Colorado Supreme Court Courtroom, 2 East 14th Avenue, Denver, Colorado. Anyone who wishes to speak at the hearing should notify the Clerk of Court, Cheryl Stevens, no later than 4:00 p.m. on Friday, September 13, 2019, by email at cheryl.stevens@judicial.state.co.us or by telephone 720-625-5150. The public comment period previously held on this proposed rule change ended on May 15, 2019. All comments received during the comment period are available here. CLS did not submit a comment letter because CLS does not consider this proposed Colorado amendment to be an ABA Model Rule 8.4(g) rule change. Rather, the proposed amendment in Colorado differs from ABA Model Rule 8.4(g) in that Colorado’s proposed rule change seeks to specifically address sexual harassment in connection with a lawyer’s professional activities, though professional activities are not limited to those in the client-lawyer relationship.

Alaska Publishes Notice of Proposed Rule Change
In June, the Alaska Bar Association provided notice of the proposed Rule 8.4(f) in its April-June 2019 Alaska Bar Rag issue (see page 18).

State Bar of South Dakota to Vote on Rule 8.4(g) Proposal 
The State Bar of South Dakota, in its June 2019 Newsletter, which focused on the upcoming State Bar Convention, announced the 2019 Annual Meeting Proposals. Included in those proposals is a proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.

Members of the South Dakota Bar will vote on the Bar Commission proposal at the 2019 South Dakota Bar Annual Meeting next week (June 19-21) in Rapid City, South Dakota. Specifically, the voting will take place on June 21, 2019 during the State Bar’s business meeting. The business meeting will be held in the Rushmore Room of the Ramkota Hotel and starts at 8:15 am Mountain Time. Voting will take place sometime after 8:30 AM and hopefully before 9:45 AM. If comments take more time than expected voting may take place after that time.

The proposed new subsection, which is a modified version of ABA Model Rule 8.4(g), would make it professional misconduct for a South Dakota lawyer to:

(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a peremptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

It is professional misconduct for a lawyer to:

(f) 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 while:

(1) representing clients,

(2) interacting with witnesses, coworkers, court personnel, lawyers and others while engaged
in the practice of law,

(3) operating or managing a law firm or law practice, or

(4) participating in bar association, business or social activities in connection with 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.

          Comment

Discrimination and harassment by lawyers in violation of paragraph (f) undermines confidence in
the legal profession and the legal system. Such discrimination includes harmful verbal conduct
or physical conduct that manifests bias or prejudice to others based on perceived membership
in one or more of the groups listed in paragraph (f). The substantive laws of anti-discrimination
and anti-harassment statutes and case law provide guidance to the application of paragraph (f).

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. A lawyer does
not violate paragraph (f) by limiting the scope or subject matter of the lawyer’s practice to
members of underserved populations in accordance with these Rules and other law. A lawyer’s
representation of a client does not constitute an endorsement of the client’s views or activities.
See Rule 1.2(b).

The Alaska Bar Association is accepting comments on the proposed amendment. Comments should be submitted to the Bar by email to Bar Counsel at page@alaskabar.org, by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, AK 99501, or by calling Bar Counsel at (907) 272-7469. Comments should be received no later than August 15, 2019.

CLS Files Comment Letter in New Hampshire
On May 29, CLS filed a comment letter with the New Hampshire Supreme Court on its new proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The CLS comment letter notes the significant differences between the New Hampshire Supreme Court’s May 2019 proposal and ABA Model Rule 8.4(g), as, unlike previous proposals considered by the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, the May 2019 proposal is not a version of ABA Model Rule 8.4(g). The CLS comment letter also notes concerns about the May 2019 proposal and provides suggestions on how the New Hampshire Supreme Court could further improve the proposed Rule 8.4 amendment.

Kim Colby Featured on The Federalist Society Blog
Also on May 29, Center Director Kim Colby published an article on The Federalist Society blog briefly discussing the newest comment period in New Hampshire and why the most recent New Hampshire proposal is not ABA Model Rule 8.4(g).

New Hampshire Rules of Professional Conduct Rule 8.4(g) Comments Due May 31
The New Hampshire Supreme Court issued an Order on May 17, opening a short public comment period until May 31 on a new proposal to amend New Hampshire Rules of Professional Conduct Rule 8.4. Unlike previous proposals considered by either the New Hampshire Supreme Court or the New Hampshire Supreme Court Advisory Committee on Rules, this newest proposal is not a version of ABA Model Rule 8.4(g). This is welcome news. Comments regarding the May 2019 proposal should be sent to rulescomment@courts.state.nh.us. CLS will file a comment letter shortly. In the meantime, here is the comment letter CLS filed on a previous version of the proposed rule.

Maine Supreme Judicial Court Adopts Amendment to Misconduct Rule
On May 13, the State of Maine Supreme Judicial Court issued an Order adopting an amendment to the Maine Rules of Professional Conduct Rule 8.4. The amendment added new section (g) to Maine’s misconduct rule. The new Maine Rule 8.4(g) is similar, but not identical, to ABA Model Rule 8.4(g), meaning that only one state – Vermont – has actually adopted the ABA model rule. The new Maine rule reads as follows:

(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.

(1) “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.

(2) “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.

(3) “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.

(4) 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).

While new section (g) of the Maine Rules of Professional Conduct Rule 8.4 may, at first glance, appear to be ABA Model Rule 8.4(g), it is, in fact, not ABA Model Rule 8.4(g). Indeed, Maine’s Rule 8.4(g) is narrower than ABA Model Rule 8.4(g). First, Maine’s Rule 8.4(g) does not include “marital status” and “socioeconomic status” in the list of types of prohibited discrimination. Second, Maine’s Rule 8.4(g)(1) provides a more definitive explanation of what constitutes “discrimination” compared to the ABA model rule, limiting it to “conduct or communication a lawyer knows or reasonably should know manifests an intent to treat a person as inferior …; disregard relevant considerations of individual characteristics or merit …; or cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.” ABA Model Rule 8.4(g), on the other hand, broadly defines “discrimination” as “harmful verbal or physical conduct that manifests bias or prejudice towards others.” Third, Maine’s Rule 8.4(g) limits conduct or communication “related to the practice of law” as that “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.” ABA Model Rule 8.4(g) is broader in that it also includes “participating in bar association, business or social activities in connection with the practice of law” in its definition of “related to the practice of law.”

CLS Submits Comments to Utah Supreme Court
The Utah Supreme Court is again considering amending its current misconduct rule, as well as considering a coordinating amendment to its Standards of Professionalism and Civility, USB14-0301. CLS filed its comments to both proposals on May 3.

Kim Colby Featured on The Federalist Society Blog
Also on May 3, Center Director Kim Colby published an article on The Federalist Society blog briefly explaining why Utah should not adopt either of the proposed amendments.

CLS Files Comment Letter with New Hampshire Supreme Court
On April 11, CLS filed its comment letter opposing adoption of the rule change proposed by the New Hampshire Supreme Court. CLS also prepared a short background document on the proposal, giving reasons why the New Hampshire Supreme Court should not adopt the proposal.

D.C. Bar Extends Comment Period 
The D.C. Bar Rules of Professional Conduct Review Committee unexpectedly extended the public comment period on its proposal to amend D.C. Rule 9.1 to include ABA Model Rule 8.4(g). Comments may now be sent to ethics@dcbar.org by close of business Friday, April 19, 2019.

Reminder – Comments on Proposed Changes to D.C. Rules of Professional Conduct Due April 5, 2019
Comments are due by April 5. Here are two quick ways to comment: (1) signing and emailing to ethics@dcbar.org the attached D.C. Bar comment letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing D.C. Rule 9.1 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter dated March 11, 2019.

Center Director Kim Colby Featured on The Federalist Society Blog
On April 5, Center Director Kim Colby published an article on The Federalist Society blog briefly explaining why D.C. should not adopt ABA Model Rule 8.4(g).

Utah Supreme Court Again Considering Changes to Utah Misconduct Rule 8.4
The Utah Supreme Court is once again looking into amendments to its current misconduct rule. The Utah Supreme Court is accepting online comments on this new amendment to Utah Rules of Professional Conduct Rule 8.4 through May 5, 2019. Comments must be submitted online and can be submitted here. The Utah Supreme Court is also considering a coordinating amendment to its Standards of Professionalism and Civility, USB14-0301, and is accepting comments on this proposal as well. Comments are also due May 5, 2019, and may be submitted here.

CLS Submits Comment Letter to D.C. Bar Rules of Professional Conduct Review Committee
In response to the public comment period being held by the D.C. Bar Rules of Professional Conduct Review Committee, CLS, on March 11, submitted a comment letter opposing the proposal to amend D.C. Rules of Professional Conduct Rule 9.1 to include ABA Model Rule 8.4(g). CLS also prepared a short background document for D.C. attorneys on why the D.C. Rules of Professional Conduct Review Committee should reject ABA Model Rule 8.4(g).

Montana Supreme Court Chooses Not to Adopt ABA Model Rule 8.4(g)
On March 1, the State Bar of Montana, along with its Ethics Committee, petitioned the Supreme Court of Montana to revise 18 rules of the Montana Rules of Professional Conduct. In its Memorandum in Support of Petition, the State Bar of Montana mentioned in a footnote (p.3, n.2) that Montana Rule of Professional Conduct Rule 8.4(g) was not included in the review as it had “earlier been the subject of Court attention … and the Supreme Court chose not to adopt the ABA’s Model Rule 8.4(g).”

Colorado Supreme Court Opens Comment Period
The Colorado Supreme Court is seeking written comments from the public on proposed amendments to Rule 8.4 of the Colorado Rules of Professional Conduct. Written comments should be submitted to Cheryl Stevens, Clerk of the Supreme Court. Comments may be mailed or delivered to 2 East 14th Avenue, Denver, CO 80203 or emailed to cheryl.stevens@judicial.state.co.us and must be received no later than 5:00 p.m. on May 15, 2019. CLS will not be submitting a comment to the Colorado Supreme Court regarding the current proposed amendment because CLS does not consider this proposal to be an ABA Model Rule 8.4(g) rule change. Rather, the proposed rule change differs from ABA Model Rule 8.4(g) in that Colorado’s proposed amendment seeks to specifically address sexual harassment in connection with a lawyer’s professional activities, though professional activities are not limited to those in the client-lawyer relationship.

New Hampshire Supreme Court Accepting Comments
On February 11, the Supreme Court of New Hampshire issued an Order regarding the amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct as proposed by the New Hampshire Supreme Court Advisory Committee on Rules (“Committee”). Pursuant to the order, the New Hampshire Supreme Court is accepting written comments on the proposed amendment. Also pursuant to the order, the New Hampshire Supreme Court will hold a public hearing on the proposed amendment. Individuals wishing to speak about the proposed amendment may address the court, and each individual doing so will be limited to five (5) minutes. Comments must be submitted before the close of the public hearing on April 12, 2019. The New Hampshire Supreme Court will consider all comments previously submitted to the Committee, so those comments do not need to be resubmitted. Comments may be submitted by email to rulescomment@courts.state.nh.us. In the alternative, one original and one hard copy of the comments may be mailed or hand delivered to the following address: New Hampshire Supreme Court, One Charles Doe Drive, Concord, NH 03301, Attn: Eileen Fox, Clerk of Court.

New Hampshire Advisory Committee on Rules Issues Report and Recommendation
On February 8, the New Hampshire Supreme Court Advisory Committee on Rules (“Committee”) sent a report and recommendation to the New Hampshire Supreme Court. The report contained the final draft of proposed rules and rule amendments the Committee is recommending for adoption by the New Hampshire Supreme Court. Included in those recommendations is an amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The Committee voted to recommend that the New Hampshire Supreme Court consider adding a provision (g) to Rule 8.4, making it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. The Committee also voted to recommend that the New Hampshire Supreme Court hold a public hearing before the full court on the proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct.

D.C. Bar Rules of Professional Conduct Review Committee Seeking Comments on Proposed Rule Changes
On February 4, the D.C. Bar Rules of Professional Conduct Review Committee (“Committee”) announced it is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct, including D.C. Rules 8.4 (Misconduct) and 9.1 (Discrimination in Employment). Comments are due by the close of business on April 5, 2019. Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001.

In its proposal, the Committee recommended that D.C. Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, be amended to closely align with ABA Model Rule 8.4(g), which addresses discrimination and harassment in conduct related to the practice of law, but with some minor differences. The Committee also recommended an amendment to Comment [3] to D.C. Rule 8.4 that would cross reference D.C. Rule 9.1.

The Committee is requesting comment on the proposed rule amendments before submitting the proposed rule amendments to the Bar’s Board of Governors. In establishing the Committee as a standing Bar committee in 1994, the Board of Governors charged it with responsibility for the on-going review of the D.C. Rules. On its own initiative, or upon request by the Board, by members of the Bar, or by the public, the Committee examines a particular rule or rules and may make recommendations for changes to the Board of Governors. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

CLS Files Supplemental Comments in New Hampshire 
CLS filed with the New Hampshire Supreme Court Advisory Committee on Rules supplemental comments regarding ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period but filed the supplemental comments to bring to the attention of the members of the New Hampshire Supreme Court Advisory Committee on Rules 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) (“NIFLA“), which was handed down after the comment period in New Hampshire closed. The NIFLA Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. Under the Court’s analysis in NIFLA, therefore, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech. The supplemental comments also noted the recent decision by the Arizona Supreme Court to reject a petition that would have amended the Arizona Rules of Professional Conduct to include ABA Model Rule 8.4(g).

Center Director Kim Colby Featured on The Federalist Society Blog
On August 24, Kim Colby published an article The Federalist Society blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) (“NIFLA“) and Matal v. Tam, 137 S. Ct. 1744 (2017).

Maine Supreme Judicial Court to Hold Public Hearing
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.

CLS Files Supplemental Comments in Maine and Utah
On August 17, CLS filed with the Maine Supreme Judicial Court supplemental comments regarding Proposed Rule 8.4(g). CLS 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) (“NIFLA“), which was after the comment period in Maine closed. The NIFLA Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. Under the Court’s analysis in NIFLA, therefore, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech.

On the same day, CLS filed similar supplemental comments with the Utah Supreme Court regarding the proposal there to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period last year.

Pennsylvania Disciplinary Board Renews Study of ABA Model Rule 8.4(g)
After extensive review and discussion of the comments and suggestions received during the comment period from December 2016 to February 2017, the Disciplinary Board of the Pennsylvania Supreme Court determined not to move forward with the proposed amendments to Pennsylvania Rule of Professional Conduct Rule 8.4 and instead renewed its study of the issue. On July 27, 2018, CLS submitted a comment letter to the Disciplinary Board of the Supreme Court of Pennsylvania urging it not to adopt its newly Proposed Rule 8.4(g). Josh Blackman, Associate Professor at South Texas College of Law Houston, also submitted a comment letter opposing adoption of the proposed amendments.

CLS Files Comment Letter with Maine Supreme Judicial Court
On June 5, CLS filed its comment letter with the Maine Supreme Judicial Court, which is considering adopting ABA Model Rule 8.4(g).

Pennsylvania Proposes New Amendments to its Misconduct Rule
On May 19, after a “renewed look at the matter,” the Disciplinary Board of the Pennsylvania Supreme Court published new Proposed Amendments to the Pennsylvania Rules of Professional Conduct Regarding Misconduct.

Reminder – Comments to Arizona Supreme Court Due May 21 
Arizona attorneys should submit written comments urging the Arizona Supreme Court to reject ABA Model Rule 8.4(g) by May 21, 2018. Comments can be as short as one paragraph and simply indicate agreement with the CLS comment letter of May 3, 2018, or comments can be longer and express your own concerns. Feel free to briefly discuss concerns found in the CLS letter or other longer sources.

• CLS has prepared a short summary on why the Arizona Supreme Court should reject ABA Model Rule 8.4(g).

• CLS’ Kim Colby had an article published The Federalist Society blog discussing the consideration of ABA Model Rule 8.4(g) in Arizona.

• A really helpful new source is a law review article written by two Arizona attorneys, Andrew Halaby and Brianna Long, which explores ABA Model Rule 8.4(g) and cautions against its adoption.

• The Arizona Lawyer carried an article by Arizona Bar Ethics Counsel that shows a few of the ramifications if ABA Model Rule 8.4(g) is adopted in Arizona.

• The Tennessee Attorney General recently issued a devastating analysis of ABA Model Rule 8.4(g), which was probably of assistance to the Tennessee Supreme Court’s decision on April 23, 2018, to reject the rule.

• The National Lawyers’ Guild, Central Arizona Chapter, Petition is the proposal urging adoption of ABA Model Rule 8.4(g).

• The Arizona Supreme Court’s Order opened the comment period.

California Supreme Court Modifies California Misconduct Rule
On May 10, 2018, the Supreme Court of California entered an Order adopting amendments to the Rules of Professional Conduct of the State Bar of California, including new rule Cal. R. P. C. 8.4.1 Prohibited Discrimination, Harassment and Retaliation. Before the ABA adopted Model Rule 8.4(g) in August 2016, the California State Bar had already proposed changes to the existing California rule, which allowed discipline only for discrimination or harassment found by a non-bar tribunal to have been unlawful. California is the only state that does not base its professional conduct rules on the ABA’s Model Rules of Professional Conduct.

New California Rule 8.4.1 retains the requirement that the discrimination or harassment be “unlawful.” The new rule, however, drops the previous rule’s requirement that a disciplinary charge could not be brought unless a non-bar tribunal had first determined that the conduct was unlawful discrimination or unlawful harassment.

The new rule is limited to three situations: 1) when representing a client; 2) when terminating or refusing to accept the representation of a client; or 3) “in relation to a law firm’s operations.” It covers the following “protected characteristics:” “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.” When a lawyer receives notice of a disciplinary charge being issued against him or her, a lawyer must notify the United States Department of Justice or the EEOC, as well as the California Department of Fair Employment and Housing.

A comment states that the rule does not apply to “conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” California also adopted a new Rule 8.5, which provides that “[a] lawyer not admitted in California is also subject to the disciplinary authority of California if the lawyer provides or offers to provide any legal services in California.”

Maine Supreme Judicial Court Considering Adopting ABA Model Rule 8.4(g)
The Maine Supreme Judicial Court is considering amending its current misconduct rule to add ABA Model Rule 8.4(g). On May 8, 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 lawcourt.clerk@courts.maine.gov 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 Files Comment Letter with the Arizona Supreme Court
On May 3, CLS filed its comment letter with the Arizona Supreme Court. Several other opponents of ABA Model Rule 8.4(g) also filed comment letters. First Amendment scholar Professor Eugene Volokh filed a comment letter on May 15. South Texas College of Law Houston Professor Josh Blackman filed a comment letter as well. On May 21, 2018, the Arizona Attorney General filed a comment letter urging the Arizona Supreme Court to heed the opposition in other states, including that of state attorneys general and state bar associations, to adoption of ABA Model Rule 8.4(g).

Center Director Kim Colby Featured on The Federalist Society Blog 
On May 1, Kim Colby published an article on The Federalist Society blog discussing the Tennessee Supreme Court’s rejection of ABA Model Rule 8.4(g).

New Hampshire Supreme Court Advisory Committee Accepting Comments
The New Hampshire Supreme Court Advisory Committee on Rules is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). On April 3, the New Hampshire Supreme Court Advisory Committee on Rules issued a Public Hearing Notice, opening a comment period on court rules proposals and noticing a public hearing. Pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules is accepting comments on the court rules proposals, including New Hampshire Rules of Professional Conduct Rule 8.4 Harassment and Discrimination. Specifically, the New Hampshire Supreme Court Advisory Committee on Rules is requesting comment on three (3) different proposed amendments to RPC 8.4. The different versions are set forth in Appendices K-M of the Public Hearing Notice (pp. 20-25).

Comments may be submitted in writing to the secretary of the Supreme Court any time on or before May 31, 2018. Comments may be emailed to rulescomment@courts.state.nh.us or mailed or hand delivered to the following address: N.H. Supreme Court, Advisory Committee on Rules, 1 Charles Doe Drive, Concord, NH 03301. Also pursuant to the notice, the New Hampshire Supreme Court Advisory Committee on Rules will hold a public hearing on Friday, June 1, 2018 at 12:30 p.m. at the Supreme Court Building on Charles Doe Drive in Concord.

Tennessee Attorney General Finds ABA Model Rule 8.4(g) Unconstitutional
On March 16, 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.

Arizona Supreme Court Accepting Comments on Adopting ABA Model Rule 8.4(g) 
The Arizona Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g) as Arizona Rule of Professional Conduct Rule 8.4(h). On January 18, the Arizona Supreme Court issued an Order opening, for public comment, various rule change petitions, including the one to adopt ABA Model Rule 8.4(g). The Arizona Supreme Court is accepting comments through May 21, 2018. CLS will be filing a comment with the Arizona Supreme Court opposing adoption of ABA Model Rule 8.4(g).

Comments may be filed electronically. To do so, you must be a registered user of the Court Rules Forum (see “How to Register” below). Once you have registered, you must log in. Go to the Court Rules Forum page and select the “Rules of the Supreme Court” folder. Search for R-17-0032. Once found, click on it and a new page will appear displaying information about the petition. Click “Add Reply” to begin the comment process.

In the “Message” field you must list the following:

Commenter’s Name
Committee Name, if applicable
Mailing Address
Phone Number
Email Address
Bar Number, if you are an attorney

If the comment does not include the applicable information, then the Court Rules Forum Moderator will reject the comment.

You may type your complete comment in the “Message” field below the above information, or you may submit your comment as a document by opening the “Attachments” bar (click on the arrow at the right-hand side of the bar). If the comment is provided as an attachment, it must be in PDF format, immediately followed by a copy in Microsoft Word format as the second attachment. The PDF version will be considered the official copy if any differences are found between the PDF and Word versions.

If you wish to provide any supplemental documents, these must also be included as attachments by opening the “Attachments” bar as indicated above. All attachments must be in PDF and Microsoft Word format.

Your comment will not automatically appear on the Court Rules Forum. Once the Moderator has approved the comment, it will appear on the Court Rules Forum.

How to Register: Click on “Register” button on the right-hand side below the Court Rules Forum banner photo. You will be required to choose a username and a password, which you will need to log in. You will also be required to enter a “Display Name” (e.g., your first name, last name, or any other identifier you choose) and a valid e-mail address. After submitting your registration request, you will be instructed to verify your registration by following a link that will be sent to your e-mail address. You must verify your registration before logging in for the first time. Once you have successfully registered and logged in using your User Name and Password, you may file comments.

In the alternative, comments may be filed by submitting an original and one paper copy of the comment, as well as one electronic copy of the written comments and supporting documents in Microsoft Word format on a CD or other compatible electronic medium. You may deliver the comments in person or mail them to the Clerk of the Supreme Court, 1501 West Washington St., Room 402, Phoenix, AZ 85007-3329 in an envelope marked “Rule Comment.

Any person filing a comment must also send a copy of the comment to the Petitioner electronically or by regular mail.

Tennessee Supreme Court Seeking Comments 
On November 21, the Tennessee Supreme Court issued an Order seeking public comment on a proposal to adopt ABA Model Rules 8.4(g). 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.

Tennessee Supreme Court Considering ABA Model Rules 8.4(g)
On November 15, the Board of Professional Responsibility of the Tennessee Supreme Court (“Board”) and the Tennessee Bar Association (“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 Tennessee RPC 8.4(g) is essentially ABA Model Rule 8.4(g) with two added sentences, both purportedly added 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.

New Hampshire Committees Work to Revise Proposed Rule
A joint committee composed of members of the New Hampshire Bar Association Ethics Committee and the New Hampshire Supreme Court Advisory Committee on Rules revised the proposed rule change, which was then presented at the September 15, 2017, meeting of the New Hampshire Supreme Court Advisory Committee on Rules.

North Dakota Supreme Court Committee Rejects ABA Model Rule 8.4(g)
The North Dakota Supreme Court’s Joint Committee on Attorney Standards, after discussion of ABA Model Rule 8.4(g) at its September 15, 2017, meeting, voted to reject ABA Model Rule 8.4(g). Members of the committee raised concerns ranging from the breadth of the rule to First Amendment issues.

Louisiana AG Issues Opinion Calling ABA Model Rule 8.4(g) Unconstitutional
On September 8, Jeff Landry, the Attorney General for the State of Louisiana, issued an opinion concluding that both ABA Model Rule 8.4(g) and the Louisiana State Bar Association’s proposed Rule 8.4(h) violate the First and Fourteenth Amendments of the United States Constitution. On September 14, U.S. News and World Report published an article that reported on the Louisiana Attorney General’s opinion.

Idaho State Bar Association Approves Proposed Changes to Misconduct Rule
Also on September 8, the Idaho State Bar Association’s Board of Commissioners approved, by a 4-1 vote, a proposed rule change to its misconduct rule. As background, from January 2017 to May 2017, a subcommittee of the Professional and Ethics Section of the Idaho State Bar Association met and proposed a draft rule that modifies ABA Model Rule 8.4(g) in significant ways, but still remains overly broad. The subcommittee approved the draft rule at its May 8, 2017 meeting. The subcommittee then presented its recommendation to the full committee at the June 6, 2017 Professional and Ethics Section meeting. The full committee approved the proposed rule, after which it was presented to the Idaho State Bar Association’s Board of Commissioners.

Nevada State Bar Requests Petition be Withdrawn
In a letter dated September 6, the Board of Governors of the State Bar of Nevada requested that the Nevada Supreme Court withdraw the petition to adopt ABA Model Rule 8.4(g).

CLS Files Comment Letter with Louisiana State Bar Association
On August 14, CLS filed a comment letter opposing the Rule 8.4 changes with the Louisiana State Bar Association.

CLS Files Comments with Utah Supreme Court
CLS submitted its comment letter opposing the adoption of ABA Model Rule 8.4(g) in Utah. All of the submitted comments may be read at the following link: https://www.utcourts.gov/utc/rules-comment/2017/06/13/rules-of-professional-conduct-comment-period-closes-july-28-2017/.

Nevada Supreme Court Extends Comment Period
The Supreme Court of Nevada issued an Order on July 7, extending the period for written comments to August 30, 2017, and also changing the date of the hearing to September 6, 2017, at 3:00 p.m.

South Carolina Supreme Court Rejects ABA Model Rule 8.4(g)
On June 20, the South Carolina Supreme Court issued an Order announcing it would not incorporate ABA Model Rule 8.4(g) into the South Carolina Rules of Professional Conduct.

Tennessee Bar Association Supports Adoption of ABA model Rule 8.4(g)
At the June 17 meeting of the Tennessee Bar Association (“TBA”) Board of Governors, the Board of Governors discussed a Report and Recommendation 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 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 ABA Model Rule 8.4(g). After much discussion, the Ethics Committee voted 15-9 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.”

Utah Supreme Court Opens Comment Period on ABA Model Rule 8.4(g)
The Utah Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). The Utah Supreme Court is accepting online comments through July 28, 2017.

Nevada Supreme Court Considering Adopting ABA Model Rule 8.4(g)
On May 8, the Board of Governors of the State Bar of Nevada filed a Petition with the Nevada Supreme Court to amend the Nevada Rules of Professional Conduct to include ABA Model Rule 8.4(g).

South Carolina Attorney General Opines on Unconstitutionality of ABA Model Rule 8.4(g)
On May 1, the South Carolina Attorney General’s Office issued a written opinion in which it concluded “that the likelihood of a successful challenge to the Model Rule based on the First Amendment and the Establishment Clause is substantial and that a court could well conclude the Rule is unconstitutional.”

Montana Legislature Passes Joint Resolution
On April 12, the Montana Legislature passed a joint resolution in which it condemned ABA Model Rule 8.4(g). In addition, Professor Eugene Volokh, who has been an outspoken opponent of the proposed rule, wrote an article regarding the move by the Montana Legislature.

Montana Office of Disciplinary Counsel Files Comments
On April 10, the Montana Office of Disciplinary Counsel filed comments with the Montana Supreme Court opposing adoption of ABA Model Rule 8.4(g) by the Montana Supreme Court, noting that the rule is overly broad.

California Supreme Court Considers Modifying its Misconduct Rule
On March 30, the Office of the General Counsel, State Bar of California, filed a request with the California Supreme Court to approve proposed amendments to the California Rules of Professional Conduct, including proposed new Rule 8.4.1. California is the only state that does not base its professional conduct rules on the ABA’s Model Rules of Professional Conduct. There is no timetable as to when the California Supreme Court may act on the proposed rule amendments.

Louisiana State Bar Association Considering ABA Model Rule 8.4(g)
The Louisiana State Bar Association is considering adopting ABA Model Rule 8.4(g). A subcommittee of the Louisiana Bar Association’s Rules of Professional Conduct Committee (“Rules Committee”) studied ABA Model Rule 8.4(g), along with rules of other U.S. jurisdictions. On March 24, the subcommittee, upon completion of the study, made a Report and Recommendation to the Rules Committee. The recommendation proposes adding a new Rule 8.4(h) to the Louisiana Rules of Professional Conduct. The report and recommendation is summarized in an Executive Summary. While the Rules Committee has not yet taken a position on the recommendation, the Rules Committee is seeking written comments through September 16, 2017.

CLS Files Comment Letter with South Carolina Supreme Court
On March 22, CLS filed its comment letter opposing adoption of ABA Model Rule 8.4(g) with the South Carolina Supreme Court.

North Dakota Supreme Court is Considering ABA Model Rule 8.4(g)
The North Dakota Supreme Court requested that its Joint Committee on Attorney Standards consider the recent amendment by the American Bar Association to its Model Rule 8.4(g). After discussion of the model rule at its March 24 meeting, the committee voted to table the issue until the committee’s meeting in the fall of 2017.

California Ethics Symposium
The State Bar of California announced it will be sponsoring an ethics symposium on Friday, April 21, 2017, at the Loyola Law School in Los Angeles. Included in the topics to be discussed is an “Analysis of the significant changes made by the proposed new rules of professional conduct.”

New Hampshire Bar Association Considering ABA Model Rule 8.4(g)
On March 9, the New Hampshire Bar Association Board of Governors voted to approve submission of a proposed rule change to the New Hampshire Supreme Court Advisory Committee on Rules, the body that would make a recommendation to the New Hampshire Supreme Court, which ultimately decides whether to adopt new rules. The change in the New Hampshire Rules of Professional Conduct would make many forms of discrimination an ethical violation. The proposed rule is notable in several respects. First, New Hampshire is one of only a handful of states that has no anti-discrimination rules or comments covering lawyers’ ethics. When New Hampshire rewrote its Rules of Professional Conduct in 2007, it did not adopt subsection (d) of Model Rule 8.4 relating to the administration of justice. As a result, New Hampshire took no action regarding the ABA’s 1998 Comment 3 prohibiting lawyer bias or prejudice. Hence, the state’s current rules and comments make no reference to bias or discrimination in the practice of law. Second, the proposed rule mirrors New Hampshire’s anti-discrimination law. As a result, the rule does not include the ABA’s bans on discrimination on the basis of gender identity or socioeconomic status.

Arizona Supreme Court Denies Motion for Expediting Misconduct Rule Change Petition
On March 2, the Supreme Court of Arizona ruled against the expedited motion finding no reason to expedite the untimely petition and stating the “petition would be considered in due course during the Court’s 2018 rules cycle.”

CLS Files Comment Letter with Pennsylvania Disciplinary Board
On February 3, CLS filed a comment letter with the Disciplinary Board of the Pennsylvania Supreme Court supporting its proposed amendments (with two additional changes) and opposing ABA Model Rule 8.4(g).

CLS Files Comment Letter with Illinois Supreme Court
On January 13, CLS filed a comment letter with the Illinois Supreme Court opposing adoption of ABA Model Rule 8.4(g).

Idaho State Bar Association Studying ABA Model Rule 8.4(g)
The Professional and Ethics Section of the Idaho State Bar Association formed a subcommittee in December 2016 to study ABA Model Rule 8.4(g) and to develop and recommend a draft rule for consideration by the Professional and Ethics Section.

Illinois State Bar Association Opposes ABA Model Rule 8.4(g)
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.

CLS Files Comment Letter in Montana
On December 8, CLS filed a comment letter with the Montana Supreme Court opposing adoption of ABA Model Rule 8.4(g).

Montana Supreme Court Extends Comment Period
The Montana Supreme Court issued an Order on December 7, extending the deadline for submitting comment letters from December 9, 2016, to April 21, 2017.

Pennsylvania Disciplinary Board Accepting Comments on Proposed Rule Change
The Disciplinary Board of the Supreme Court of Pennsylvania is considering amending its current Rule 8.4. The Board gave Notice on December 3, that it was considering recommending to the Pennsylvania Supreme Court amendments to Pennsylvania Rules of Professional Conduct Rule 8.4. The Board is accepting comments until February 3, 2017. At the same time, the Pennsylvania Bar Association Women in the Profession Committee (“WIP”), with the support of other Pennsylvania Bar Association entities, is circulating a separate proposal for amending Rule 8.4. This second proposal is essentially ABA Model Rule 8.4(g).

Sign the National Center for Law & Policy Comment Letter
The National Center for Law & Policy, a California organization, invites individual California attorneys and/or organizations to sign onto a comment letter. Any attorney wishing to sign the letter can send their formal name and California Bar number to Amy Cappelletti, ACappelletti@nclplaw.org, by close of business on Monday.

California Bar Association Accepting Comments on Proposed Ethics Rules Changes
The California Bar Association, which is revising its ethics rules, announced a comment period regarding proposed amendments to its ethics rules. The comment period ends at 5 p.m., Tuesday, September 27, 2016. These proposed amendments include California’s misconduct rule. California is the only state that does not base its professional conduct rules on the ABA’s Model Rules of Professional Conduct. 

Among the revisions to CA Rule 8.4.1 are two alternative proposals. The first would make it professional misconduct to harass or discriminate on the basis of 20 protected characteristics. One version would also remove the current requirement that an attorney be found by a court to have engaged in unlawful harassment or discrimination before a disciplinary charge could be brought. That proposal would also require the state bar to notify the federal Department of Justice or the Equal Employment Opportunity Commission when it issues a disciplinary charge against an attorney under Rule 8.4.1.

These changes are just as objectionable as the ABA’s Proposed Model Rule 8.4 Rule change. A local bar association sent out an article entitled Cal. Rules Redo Marries Borrowed Rules With Old and New that purports to address the numerous changes being made to the Rule of Professional Conduct in California. The article discusses the California Rules 8.4.1 change regarding discrimination, harassment and retaliation.