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ABA Model Rule 8.4(g) Efforts in Utah


Status Of Action In Utah

April 2019
Status – The Utah Supreme Court is considering amending Utah Rules of Professional Conduct Rule 8.4.

The Utah Supreme Court is again considering amending its current misconduct rule. The Utah Supreme Court is accepting online comments on this new amendment to Utah Rules of Professional Conduct Rule 8.4 through May 5, 2019. Comments must be submitted online and can be submitted by clicking here. The Utah Supreme Court is also considering a coordinating amendment to its Standards of Professionalism and Civility, USB14-0301, and is accepting comments on this proposal as well. Comments are also due May 5, 2019, and may be submitted by clicking here. CLS filed its comments to both proposals on May 3, 2019.

Additionally, Center Director Kim Colby published an article on The Federalist Society blog post briefly explaining why Utah should not adopt either of the proposed amendments.

August 2018 
On August 17, 2018, CLS filed with the Utah Supreme Court supplemental comments regarding the proposal to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments before the close of the comment period last year, but filed the supplemental comments to bring to the attention of the Utah Supreme Court Justices the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) ("NIFLA").

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 NIFLA and Matal v. Tam, 137 S. Ct. 1744 (2017).

July 2017
CLS submitted its comment letter opposing the adoption of ABA Model Rule 8.4(g) in Utah. Click here to read the comments submitted by CLS. All of the submitted comments may be read at the following link: https://www.utcourts.gov/utc/rules-comment/2017/06/13/rules-of-professional-conduct-comment-period-closes-july-28-2017/.

June 2017
The Utah Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g). The Utah Supreme Court is accepting online comments through July 28, 2017.


Proposed Rule Changes in Utah

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

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

Comment
[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.

[3a] The Standards of Professionalism and Civility approved by the Utah Supreme Court are intended to improve the administration of justice. An egregious violation or a pattern of repeated violations of the Standards of Professionalism and Civility may support a finding that the lawyer has violated paragraph (d).

2017 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.

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).

2019 Proposed Rule – ABA Model Rule 8.4(g)
It is professional misconduct for a lawyer to:

(g) engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or

(h) egregiously violate, or engage in a pattern of repeated violations, of the Standards of 18 Professionalism and Civility if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

Comment
[1a] An act of professional misconduct under Rule 8.4(b), (c), (d), (e), (f), (g), or (h) cannot be counted as a separate violation of Rule 8.4(a) for the purpose of determining sanctions. Conduct that violates other Rules of Professional Conduct, however, may be a violation of Rule 8.4(a) for the purpose of determining sanctions.

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct bias or prejudice based upon race; color; sex; pregnancy, childbirth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion; national origin; disability, sexual orientation; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice. The protected classes listed in this Comment are consistent with those enumerated in the Utah Antidiscrimination Act of 1965, Utah Code Sec. 34A-5-106(1)(a)(2016), and in federal statutes, and is not meant to be an exhaustive list as the statutes may be amended from time to time. 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 paragraph (d).

[4] The substantive law of antidiscrimination and anti-harassment statutes and case law guides the application of paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense. Paragraph (g) does not limit the ability of a lawyer to accept, decline, or in accordance with Rule 1.16, withdraw from a representation, nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules. Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g). Lawyers may engage in conduct undertaken to discuss diversity and inclusion, including any benefits and challenges, without violating paragraph (g). Implementing initiatives aimed at recruiting, hiring, retaining and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).

[4a] Paragraph (g) does not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution.

[5] 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).

[6] 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.

[7] 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.

[8] This rule differs from ABA Model Rule 8.4 to the extent that it changes paragraph (g), adds new paragraph (h), changes comments [3] and [4], and contains comments [1a] and [4a].