ABA Model Rule 8.4(g) Efforts in Idaho

Status of Action in Idaho

January 2023
Status – The Idaho Supreme Court rejected a proposed from the Idaho State Bar Commissioners to amend Rule 8.4 of the Idaho Rules of Professional Conduct to include anti-discrimination and anti-harassment provisions.

On January 20, 2023, the Idaho Supreme Court issued an order rejecting the recommendation of the Idaho State Bar Commissioners (the Bar) to amend the Idaho Rules of Professional Conduct Rule 8.4. Resolution 21-01 would have added anti-discrimination and anti-harassment provisions to Idaho’s misconduct rule. While commending “the Bar’s … attempts to address unlawful discrimination and harassment in the legal profession, the court explained it could not adopt the resolution because the resolution violates the First Amendment and is also unconstitutionally overbroad and vague.

November 2021
Status – The Idaho State Bar Association has once again proposed an amendment to Rule 8.4 of the Idaho Rules of Professional Conduct.

At their October 9, 2021 meeting, the Idaho State Bar Board of Commissioners voted to support a proposed Resolution (the 2021 Proposed Rule) that would amend Idaho Rule of Professional Conduct 8.4 to include anti‑discrimination and anti‑harassment provisions. At the meeting, the Anti-Discrimination Anti-Harassment Committee of the Idaho State Bar Association’s Professionalism & Ethics Section provided a presentation and a memorandum in support of the newly proposed amendment. A similar resolution was previously rejected by the Idaho Supreme Court in 2018.

The Resolution will be voted on by bar members who attend the 2021 Roadshow and will then proceed through the 2021 resolution process as outlined on the Idaho State Bar website. The Roadshow dates and locations are as follows:

1st District, Coeur d’Alene Nov. 4 – noon
2nd District, Moscow Nov. 4 – 6:00 p.m.
3rd District, Nampa Nov. 15 – 6:00 p.m.
4th District, Boise Nov. 16 – Noon (virtual meeting)
5th District, Twin Falls Nov. 10 – 6:00 p.m.
6th District, Pocatello Nov.10 – noon
7th District, Idaho Falls Nov. 9 – noon

CLS is urging Idaho attorneys to attend their district meeting and oppose the proposed Resolution and its proposed changes to Idaho Rule of Professional Conduct 8.4. CLS has prepared a memorandum and a presentation as to why Idaho should not adopt the proposed Resolution.

September 2018
The Idaho Supreme Court, by a vote of 3-2, rejected a resolution that would have amended Idaho Rule of Professional Conduct 8.4 to include the language of ABA Model Rule 8.4(g). The Idaho Supreme Court sent official notice of the decision to the Idaho State Bar on September 6, 2018.

February 2018
The Idaho Supreme Court is considering a a proposal to amend the state’s professional misconduct rule by adding a subsection (g) that is similar to ABA Model Rule 8.4(g). CLS submitted a comment letter to the Idaho Supreme Court on February 16, 2018.

July 2017
The Professional and Ethics Section of the Idaho State Bar Association (“ISBA”) 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. From January 2017 to May 2017, the subcommittee met and proposed a draft rule that modifies ABA Model Rule 8.4(g) in significant ways; however, it remains overly broad and should be rejected. 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 8.4. Thereafter, the proposed rule was presented to the Idaho State Bar Association’s Board of Commissioners, who also approved the proposed rule.

Proposed Rule Changes in Idaho

Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

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

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

Current Comment
[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled to take.

[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

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

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(g) engage in discrimination or harassment, defined as follows:

(1) in representing a client or operating or managing a law practice, engage in conduct that the lawyer knows or reasonably should know is unlawful discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules; and

(2) in conduct related to the practice of law, engage in conduct that the lawyer knows or reasonably should know is harassment. Harassment is derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. To constitute a violation of this subsection, the harassment must be severe or pervasive enough to create an environment that is intimidating or hostile to a reasonable person. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules.

Proposed Comment
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Harassment includes sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal, written, or physical conduct of a sexual nature. Factors to be considered to determine whether conduct rises to the level of harassment under paragraph (g)(2) of this Rule include: the frequency of the harassing conduct; its severity; whether it is threatening or humiliating, or a mere offensive utterance; whether it is harmful to another person; or whether it unreasonably interferes with conduct related to the practice of law. Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of harassment under paragraph (g)(2). The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes: representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business, or social activities in connection with the practice of law.

[5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation consistent with Rule 1.5(a). Lawyers should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).