ABA Model Rule 8.4(g) Efforts in Texas
Status Of Action In Texas
Status –The Texas Attorney General issued an advisory opinion that ABA Model Rule 8.4(g), if adopted in Texas, would likely be found unconstitutional.
The Texas Attorney General issued an advisory opinion in December 2016 finding that ABA Model Rule 8.4(g) is unnecessary to protect against prohibited discrimination in the State of Texas and, were it to be adopted, a court would likely invalidate it as unconstitutional.
Proposed Rule Changes in Texas
Current Rule 8.04 Misconduct
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of
another, whether or not the violation occurred in the course of a client-lawyer relationship;
(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice;
(5) state or imply an ability to influence improperly a government agency or official;
(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
judicial conduct or other law;
(7) violate any disciplinary or disability order or judgment;
(8) fail to timely furnish to the Chief Disciplinary Counsels office or a district grievance committee a
response or other information as required by the Texas Rules of Disciplinary Procedure, unless he
or she in good faith timely asserts a privilege or other legal ground for failure to do so;
(9) engage in conduct that constitutes barratry as defined by the law of this state;
(10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure relating to
notification of an attorneys cessation of practice;
(11) engage in the practice of law when the lawyer is on inactive status, except as permitted by
section 81.053 of the Government Code and Article XIII of the State Bar Rules, or when the lawyer's
right to practice has been suspended or terminated, including, but not limited to, situations where
a awyer’s right to practice has been administratively suspended for failure to timely pay required
fees or assessments or for failure to comply with Article XII of the State Bar Rules relating to
Mandatory Continuing Legal Education; or
(12) violate any other laws of this state relating to the professional conduct of lawyers and to the
practice of law.
(b) As used in subsection (a)(2) of this Rule, “serious crime” means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.
1. There are four principal sources of professional obligations for lawyers in Texas: these rules, the State Bar Act, the State Bar Rules, and the Texas Rules of Disciplinary Procedure (TRDP). All lawyers are presumed to know the requirements of these sources. Rule 8.04(a)(1) provides a partial list of conduct that will subject a lawyer to discipline.
2. Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such implication. Traditionally in this state, the distinction has been drawn in terms of those crimes subjecting a lawyer to compulsory discipline, criminal acts relevant to a lawyer’s fitness for the practice of law, and other offenses. Crimes subject to compulsory discipline are governed by TRDP, Part VIII. In addition, although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for criminal acts that indicate a lack of those characteristics relevant to the lawyer’s fitness for the practice of law. A pattern of repeated criminal acts, even ones of minor significance when considered separately, can indicate indifference to legal obligations that legitimately could call a lawyer’s overall fitness to practice into question. See TRDP, Part VIII; Rule 8.04(a)(2).
3. A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation exists. The provisions of Rule 1.02(c) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges to legal regulation of the practice of law.
4. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust.