ABA Model Rule 8.4(g) Efforts in Colorado
Status of Action in Colorado
Status – The Colorado Supreme Court adopted an amendment to Rule 8.4 of the Colorado Rules of Professional Conduct. Colorado is one of the states whose Rules of Professional Conduct specifically addressed bias in a rule prior to passage of ABA Model Rule 8.4(g).
On September 19, 2019, the Colorado Supreme Court amended Rule 8.4 of the Colorado Rules of Professional Conduct to include a prohibition on sexual harassment. Specifically, the Colorado Supreme Court added to its Rule 8.4 a new subsection (i), making it professional misconduct to “engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.” The Colorado Supreme Court also added a new Comment [5A], which defines “sexual harassment.”
It should be noted that this Rule 8.4 amendment in Colorado is not ABA Model Rule 8.4(g) as it specifically addresses sexual harassment in connection with a lawyer’s professional activities. In fact, Colorado’s misconduct rule already had a provision addressing bias—Colorado Rule of Professional Conduct Rule 8.4(g)—that predates the ABA’s model rule and is not as broad as ABA Model Rule 8.4(g).
The Colorado Supreme Court will conduct a public hearing on proposed changes to Rule 8.4 of the Colorado Rules of Professional Conduct on Wednesday, September 18, 2019, at 3:30 p.m. in the Colorado Supreme Court Courtroom, 2 East 14th Avenue, Denver, Colorado. Anyone who wishes to speak at the hearing should notify the Clerk of Court, Cheryl Stevens, no later than 4:00 p.m. on Friday, September 13, 2019, by email at firstname.lastname@example.org or by telephone 720-625-5150. The public comment period previously held on this proposed rule change ended on May 15, 2019. All comments received during the comment period are available here.
The Colorado Supreme Court is seeking written comments from the public on a proposed amendment to Rule 8.4 of the Colorado Rules of Professional Conduct. The proposed amendment in Colorado is not ABA Model Rule 8.4(g) and differs from the other 8.4(g) proposals to date in that the Colorado proposed amendment seeks to specifically address sexual harassment in connection with a lawyer’s professional activities, though professional activities are not limited to those in the client-lawyer relationship. Colorado’s misconduct rule already addresses bias in subsection (g). Colorado’s Rule 8.4(g) is not the ABA’s Model Rule 8.4(g) and, in fact, predates the ABA’s model rule.
Written comments should be submitted to Cheryl Stevens, Clerk of the Supreme Court. Comments may be mailed or delivered to 2 East 14th Avenue, Denver, CO 80203. Written comments may be also emailed to email@example.com. All comments must be received no later than 5:00 p.m. on May 15, 2019.
Rule Changes in Colorado
Old Rule 8.4 Maintaining the Integrity of the Profession
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, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities;
(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;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(g) engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process; or
(h) engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer’s fitness to practice law.
 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.
 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.
 A lawyer who, in the course of representing a client, knowingly manifests by word or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (g) and also may violate paragraph (d). Legitimate advocacy respecting the foregoing factors does not violate paragraphs (d) or (g). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
 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.
New Rule 8.4 Maintaining the Integrity of the Profession
It is professional misconduct for a lawyer to:
(a) – (h) [NO CHANGE]
(i) engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.
- [NO CHANGE]
[5A] Sexual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome. The substantive law of employment discrimination, including antiharassment statutes, regulations, and case law, may guide, but does not limit, application of paragraph (i). “Professional activities” are not limited to those that occur in a client-lawyer relationship.