ABA Model Rule 8.4(g) Efforts in Wisconsin

Status of Action in Wisconsin

July 2023
Status – The Wisconsin Supreme Court declined to adopt ABA Model Rule 8.4(g).

On July 11, the Wisconsin Supreme Court issued an order denying a petition from the State Bar Standing Committee on Professional Ethics asking the court to replace existing Supreme Court Rule 20:8.4(i) with ABA Model Rule 8.4(g). The court held a closed administrative conference in April 2023 during which the justices discussed the petition and voted to deny it. The concurring opinion prominently features CLS’ comment letter.

September 2021
At its September meeting, the State Bar of Wisconsin’s Board of Governors supported the proposal from the State Bar’s Professional Ethics Committee to adopt ABA Model Rule 8.4(g) into Wisconsin’s attorney ethics rules. The model rule would replace current Rule 20:8.4(i), which says it is professional misconduct for an attorney to “harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities,” with an exception for “legitimate advocacy.” The proposal will now move to the Wisconsin Supreme Court as a petition.

June 2021
The State Bar of Wisconsin’s Board of Governors discussed the proposal from the State Bar’s Professional Ethics Committee to adopt ABA Model Rule 8.4(g) at its June meeting. According to the ethics committee, the proposal is intended to improve the legal profession’s commitment to diversity, inclusivity, and equal justice. In 2019, then-State Bar President Jill Kastner tasked all State Bar committees to consider ways in which the State Bar could improve diversity, inclusion, and equity within the profession. The ethics committee’s proposal was a result of that charge.

March 2021
On March 1, Christian Legal Society submitted its comment letter to the Wisconsin State Bar’s Committee on Professional Ethics in response to the committee’s request for input on its proposal to modify Wisconsin Supreme Court Rule 20:8.4(i) to conform to ABA Model Rule 8.4(g). CLS’ Center for Law and Religious Freedom prepared an informational document explaining why Wisconsin should not adopt ABA Model Rule 8.4(g). Lawyers may file their own comments opposing adoption of ABA Model Rule 8.4(g) by using this sample comment letter as a model, which can also be downloaded in Word here, or by formulating their own comments using these ten talking points. Comments can be as simple as the following: “I oppose adoption of ABA Model Rule 8.4(g) because it threatens Wisconsin lawyers’ First Amendment rights. Existing Supreme Court Rule 20:8.4(i) already adequately addresses harassment ‘on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities.’ I respectfully request the Committee reject greatly expanding the current rule by adopting ABA Model Rule 8.4(g).”

Please take action before March 12, 2021. Direct comments urging the committee to reject ABA Model Rule 8.4(g) to Ben Kempinen at kempinen@wisc.edu and Ethics Counsel Tim Pierce at tpierce@wisbar.org.

February 2021
The Wisconsin State Bar’s Standing Committee on Professional Ethics is seeking input on whether it should adopt ABA Model Rule 8.4(g) as a modification of current Wisconsin Supreme Court Rule 20:8.4(i). The committee sent a memorandum to the Wisconsin Supreme Court outlining the proposed changes and rationale for the proposal. The committee would like to receive any comments by March 12, 2021. Comments and questions should be directed to the ethics committee chair Ben Kempinen and the ethics counsel Tim Pierce.

Current Rule in Wisconsin

SCR 20:8.4 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 to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

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

(f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers;

(g) violate the attorney’s oath;

(h) fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15 (4), SCR 22.001 (9) (b), SCR 22.03 (2), SCR 22.03 (6), or SCR 22.04 (1); or

(i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities. Legitimate advocacy respecting the foregoing factors does not violate par. (i).

History: Sup. Ct. Order No. 04-07, 2007 WI 4, 293 Wis. 2d xv.

Case Note: The undisputed fact of conversion of a client’s money demonstrates as a matter of law the element of dishonesty, in violation of sub. (c). Office of Lawyer Regulation v. Scanlan, 2006 WI 38, 290 Wis. 2d 30, 712 N.W.2d 877, 04-1930.

Note: The above annotations cite to SCR 20 as it existed prior to the adoption of Sup. Ct. Order No. 04-07.

Current Wisconsin Comment
Intentional violation of tax laws, including failure to file tax returns or failure to pay taxes may violate SCR 20:8.4 (f), absent a showing of inability to pay. In re Disciplinary Proceedings Against Cassidy, 172 Wis. 2d 600, 493 N.W.2d 362 (1992).

Wisconsin Committee Comment
Failure to cooperate, paragraph (h), was previously enforced as a violation of paragraph (f). Paragraph (h) was added to the rule to provide better notice to lawyers of the obligation to cooperate. Other statutes, rules, orders, and decisions continue to be included within the definition of misconduct and are enforceable under paragraph (f).

Paragraphs (f) through (i) do not have counterparts in the Model Rule. What constitutes harassment under paragraph (i) may be determined with reference to anti-discrimination legislation and interpretive case law. Because of differences in content and numbering, care should be used when consulting the ABA Comment.

2013 Wisconsin Comment
In addition to the obligations in this rule, Wisconsin attorneys should note the obligations concerning notification set forth in SCR 21.15(5) and SCR 22.22(1). [Sup. Ct. Order No. 10-09]

Note: Sup. Ct. Order No. 10-09 states that “the comment to SCR 20:8.4(b) is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

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

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