Alaska

ABA Model Rule 8.4(g) Efforts in Alaska


Status of Action in Alaska

August 2020
Status - The Alaska Bar Association is considering adopting a version of ABA Model Rule 8.4(g).

In response to the public comment period being held by the Alaska Bar Association, CLS submitted, on August 10, 2020, a comment letter opposing the proposal to amend Alaska Rules of Professional Conduct Rule 8.4 with Proposed Rules 8.4(f)-(g).

June 2020
The Alaska Bar Association provided notice in the April-June 2020 Alaska Bar Rag (pages 6-8) that it is proposing two new Alaska Rules of Professional Conduct, Rule 8.4(f)-(g) and Rule 9.1. 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 rules 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).

September 2019
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.

August 2019
On August 29, Center Director Kim Colby published an article on The Federalist Society blog discussing the letter filed by the Alaska Attorney General in which he warns the Alaska Bar Association that the proposed Rule 8.4(f) is unconstitutional.

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.

The Alaska Bar Association announced, on August 22, 2019, 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.

On August 9, 2019, 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.

July 2019
In response to the public comment period being held by the Alaska Bar Association, CLS submitted, on July 29, 2019, 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 (1) by signing and emailing to page@alaskabar.org this 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 background 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.

Also on July 29, Center Director Kim Colby published an article on The Federalist Society blog discussing why the Alaska Bar Association should not adopt proposed Alaska Rule of Professional Conduct Rule 8.4(f).

June 2019
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).

May 2019
On May 31, the Alaska Bar Association notified Bar members via email that the Committee on the Rules of Professional Conduct ("Committee") of the Alaska Bar Association is proposing an amendment to Alaska Rules of Professional Conduct Rule 8.4. Specifically, the Committee is proposing to add new subsection (f), which reads as follows:

          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.


Proposed Rule Changes in Alaska

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) state or imply an ability either to influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(e) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Current Comment
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.

A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning, or application of the law apply to challenges of legal regulation of the practice of law.

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.

This rule does not prohibit a lawyer from advising and supervising lawful covert activity in the investigation of violations of criminal law or civil or constitutional rights, provided that the lawyer’s conduct is otherwise in compliance with these rules and that the lawyer in good faith believes there is a reasonable possibility that a violation of criminal law or civil or constitutional rights has taken place, is taking place, or will take place in the foreseeable future. Though the lawyer may advise and supervise others in the investigation, the lawyer may not participate directly in the lawful covert activity. “Covert activity,” as used in this paragraph, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge.

Although assisting a client under Rule 1.2(f) may violate federal drug laws, it is not a violation of Rule 8.4(b).


2020 Proposed Rule 8.4(f)-(g)
It is professional misconduct for a lawyer to:

(f) engage in conduct that the lawyer knows is harassment or invidious discrimination during the lawyer’s professional relations with (1) officers or employees of a tribunal; (2) lawyers, paralegals, and others working for other law firms; (3)  parties, regardless of whether they are represented by counsel; (4) witnesses; or (5) seated jurors.

In addition, it is professional misconduct for a lawyer to knowingly engage in harassment or invidious discrimination in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s law firm, if the lawyer’s conduct results in a final agency or judicial determination of employment misconduct or discrimination.

This rule does not prohibit a lawyer from engaging in legitimate counseling or advocacy when a person’s membership in a protected class is material.

This rule does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

(g) For purposes of paragraph (f)

    (1) “Harassment” means unwelcome conduct, whether verbal or physical, that has no reasonable
          relation to a legitimate purpose and is so severe or sustained that a reasonable person would
          consider the conduct intimidating or abusive.

    (2) “Invidious discrimination” means unequal treatment of a person because of their membership in
          a protected class when that unequal treatment has no reasonable relation to a legitimate
          purpose.

    (3) “Protected class” refers to a person’s race, color, gender, sexual identity  or orientation, religion,
          ethnicity or national origin, disability, age, marital status, pregnancy or parenthood, or status as a
          veteran.

    (4) “Witness” includes any person who is contacted in connection with a matter because that
          person may have knowledge or information pertinent to the matter.

2020 Proposed Comment
Rules 8.4(f) and (g) are intended to be a counterpart to Rules 3.4 and 4.4(a), which declare that, in representing a client, a lawyer shall not use means that lack any substantial purpose other than to embarrass, delay, or burden a third party.

Harassment and invidious discrimination are intolerable because of their adverse effect on the proper administration of justice. The administration of justice is impeded when a lawyer engages in conduct that has no legitimate purpose other than to intimidate or distract those who have independent responsibilities and roles in the justice system.

For instance, our justice system depends on the effectiveness of adversary counsel. One of the fundamental aims of our court rules, including the Rules of Professional Conduct, is to assure that adversaries have an equal opportunity to prepare and present their case, so as to advance the achievement of a just result. A lawyer’s harassment of or invidious discrimination against other participants in a matter can impair their effectiveness, whether as advocates for opposing views or as officers of the court. An attorney who knowingly engages in such conduct perverts advocacy, obstructs the proper administration of justice, and undermines public respect for, and acceptance of, our adversary system and the legal profession.

The persons who are protected from a lawyer’s harassment or invidious discrimination under this rule include seated jurors, that is jurors who have gone through the selection process and have been sworn to adjudicate a case. Allegations of harassment or invidious discrimination against prospective jurors should be handled by trial judges through the procedures developed under Batson v. Kentucky, 476 U.S. 79 (1986).

A lawyer’s harassing or invidiously discriminatory conduct directed to persons working for the lawyer or the lawyer’s firm adversely affects the proper administration of justice by undermining confidence in the legal profession. Because agencies and courts routinely adjudicate disputes arising out of allegations of harassment and invidious discrimination in the workplace, the existence of such misconduct should be determined, in the first instance, by an agency or court before it may be the subject of professional discipline.

2020 Proposed Related Amendments to Professional Conduct 9.1: Definitions
(j) “Party” denotes any person who participates in, and who has a legal interest in the outcome of, any matter for which the lawyer has been engaged.

2020 Proposed Comment
Parties

In a lawsuit or proceeding before a tribunal, the parties include plaintiffs and defendants, petitioners and respondents, complainants, cross-complainants, cross-defendant, and all other persons with equivalent roles in the lawsuit or proceeding, no matter how they are denominated. In the negotiation, drafting, or action to enforce or alter a contract or other agreement, the parties include all individuals who are bound, or will be bound, by the terms of the agreement. If the matter for which the lawyer has been engaged concerns only giving advice without interaction with third parties, then the only parties are the lawyer’s clients.

Throughout the Rules of Professional Conduct, words in the singular include the plural and words in the plural include the singular.


2019 Proposed Rule 8.4(f)
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.

2019 Proposed 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).