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ABA Model Rule 8.4(g) Efforts in Arizona


Status of Action in Arizona

August  2018
Status – The Arizona Supreme Court rejected ABA Model Rule 8.4(g).

Arizona is one of the states that addresses bias and prejudice in the comment to the rules of professional conduct rather than in a black-letter rule. This comment predates passage of ABA Model Rule 8.4(g). 

The Arizona Supreme Court, on August 30, 2018, issued an Order denying the Petition to Amend Rule 42, Ethical Rule 8.4, Rules of the Supreme Court, that would have added language adopted by the ABA, namely ABA Model Rule 8.4(g), as it applies to nondiscrimination.

On August 24, 2018, Kim Colby was featured on 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).

May 2018
CLS filed its comment letter with the Arizona Supreme Court on May 3. 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).

Written Comments Due May 21! 

Ideas for comment letters:
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 or one-page indicating agreement with the Christian Legal Society 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 should reject ABA Model Rule 8.4(g).
  • A really helpful new source is a law review article written by two Arizona attorneys, Andrew Halaby and Brianna Long, which explores Model Rule 8.4(g) and cautions against its adoption.
  • 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.

January 2018
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 8.4(h). On January 18, 2018, 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, http://www.azcourts.gov/Rules-Forum, 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.

October 2017
The Central Arizona Chapter of the National Lawyer Guild filed a Petition to Amend Rule 42, E.R. 8.4, with the Arizona Supreme Court on February 23, 2017. Pursuant to Rules 28(A)(1) of the Arizona Supreme Court, a petition for rule change must be filed by January 10 in any given year to be considered by the Arizona Supreme Court at its annual rules agenda. Four days later, on February 27, the Central Arizona Chapter of the National Lawyer Guild filed a Motion for Expedited Consideration of its previously-filed petition.

On March 2, 2017, 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.”


Proposed Rule Changes in Arizona

Current Ethics 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 Code of Judicial Conduct or other law.

(g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule 10.2(b).

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, or 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, gender identity or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. This does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, gender identity or socioeconomic status, or other similar factors, are issues in the proceeding. 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 ER 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 – ABA Model Rule 8.4(g)
It is professional misconduct for a lawyer to:

(g) 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 in conduct related to 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.

Proposed Comment
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. 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. 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.

[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 or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also 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. See Rule 6.2(a), (b) and (c). 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).