ABA Model Rule 8.4(g) Efforts in the District of Columbia

Status of Action in the District of Columbia

April 2019
Status – The D.C. Bar Rules of Professional Conduct Review Committee is considering adopting ABA Model Rule 8.4(g).

The D.C. Bar extended the comment period on proposed amendments to the D.C. Rules of Professional Conduct. Comments now due by April 19, 2019. The D.C. Bar Rules of Professional Responsibility Review Committee unexpectedly extended the public comment period on its proposal to amend D.C. Rule 9.1 to include ABA Model Rule 8.4(g). Comments may be sent to ethics@dcbar.org by close of business this Friday, April 19, 2019.

Reminder! Comments on proposed amendments to the D.C. Rules of Professional Conduct are due by Friday, April 5, 2019. Two quick ways to comment are by (1) signing and emailing to ethics@dcbar.org the attached D.C. Bar Comment Letter, which provides the basic common-sense reasons for opposing the proposed rule change; or (2) sending a short email simply stating that you oppose changing D.C. Rule 9.1 to include ABA Model Rule 8.4(g) for the reasons given by Christian Legal Society in its comment letter dated March 11, 2019.

Additionally, Center Director Kim Colby published an article on The Federalist Society blog post briefly explaining why D.C. should not adopt ABA Model Rule 8.4(g).

March 2019
In response to the public comment period being held by the D.C. Bar Rules of Professional Responsibility Review Committee, CLS  submitted a comment letter opposing the proposal to amend D.C. Rules of Professional Conduct Rule 9.1 to include ABA Model Rule 8.4(g). CLS has also prepared a short background document on the proposal.

Additionally, Center Director Kim Colby published an article on The Federalist Society blog post analyzing the proposed rule and discussing the reasons D.C. should not adopt it.

February 2019
On February 4, 1019, the D.C. Bar Rules of Professional Conduct Review Committee (“Committee”) announced it is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct, including D.C. Rules 8.4 (Misconduct) and 9.1 (Discrimination in Employment). Comments are due by the close of business on April 5, 2019.

Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001.

In its proposal to the D.C. Rules, the Committee recommended that D.C. Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, be amended to closely align with ABA Model Rule 8.4(g), which addresses discrimination and harassment in conduct related to the practice of law, with some minor differences. The Committee also recommended an amendment to Comment [3] to D.C. Rule 8.4 that would cross reference D.C. Rule 9.1.

The Committee is requesting comment on the proposed rule amendments before submitting the proposed rule amendments to the Bar’s Board of Governors. In establishing the Committee as a standing Bar committee in 1994, the Board of Governors charged it with responsibility for the on-going review of the D.C. Rules. On its own initiative, or upon request by the Board, by members of the Bar, or by the public, the Committee examines a particular rule or rules and may make recommendations for changes to the Board of Governors. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

Proposed Rule Changes in the District of Columbia

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 seriously interferes with the administration of justice;

(e) State or imply an ability to influence improperly a government agency or official;

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

(g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter.

Current Comment
[1] 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.

[2] Paragraph (d)’s prohibition of conduct that “seriously interferes with the administration of justice” includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as “prejudicial to the administration of justice.” The cases under paragraph (d) include acts by a lawyer such as: failure to cooperate with Disciplinary Counsel; failure to respond to Disciplinary Counsel’s inquiries or subpoenas; failure to abide by agreements made with Disciplinary Counsel; failure to appear in court for a scheduled hearing; failure to obey court orders; failure to turn over the assets of a conservatorship to the court or to the successor conservator; failure to keep the Bar advised of respondent’s changes of address, after being warned to do so; and tendering a check known to be worthless in settlement of a claim against the lawyer or against the lawyer’s client. Paragraph (d) is to be interpreted flexibly and includes any improper behavior of an analogous nature to these examples.

[3] A lawyer violates paragraph (d) by offensive, abusive, or harassing conduct that seriously interferes with the administration of justice. Such conduct may include words or actions that manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.

Proposed Comment [3] to Rule 8.4 Misconduct
[3] See Rule 9.1 for guidance on prohibited harassment and discrimination. Conduct that violates Rule 9.1 and seriously interferes with the administration of justice also violates paragraph (d) of this Rule. A lawyer violates paragraph (d) by offensive, abusive, or harassing conduct that seriously interferes with the administration of justice. Such conduct may include words or actions that manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.
Current Rule 9.1 Discrimination in Employment
A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap.

Current Comment
[1] This provision is modeled after the D.C. Human Rights Act, D.C. Code § 2-1402.11 (2001), though in some respects is more limited in scope. There are also provisions of federal law that contain certain prohibitions on discrimination in employment. The Rule is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law.

[2] The investigation and adjudication of discrimination claims may involve particular expertise of the kind found within the D.C. Office of Human Rights and the federal Equal Employment Opportunity Commission. Such experience may involve, among other things, methods of analysis of statistical data regarding discrimination claims. These agencies also have, in appropriate circumstances, the power to award remedies to the victims of discrimination, such as reinstatement or back pay, which extend beyond the remedies that are available through the disciplinary process. Remedies available through the disciplinary process include such sanctions as disbarment, suspension, censure, and admonition, but do not extend to monetary awards or other remedies that could alter the employment status to take into account the impact of prior acts of discrimination.

[3] If proceedings are pending before other organizations, such as the D.C. Office of Human Rights or the Equal Employment Opportunity Commission, the processing of complaints by Disciplinary Counsel may be deferred or abated where there is substantial similarity between the complaint filed with Disciplinary Counsel and material allegations involved in such other proceedings. See §19(d) of Rule XI of the Rules Governing the District of Columbia Bar.

Proposed Rule 9.1 Nondiscrimination and Antiharassment
It is professional misconduct for a lawyer, with respect to the practice of law, to 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, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Proposed Comment
[1] Discrimination and harassment by lawyers in violation of the Rule 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 antiharassment may guide application of the Rule.

[2] Conduct with respect 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 or business activities (for example, social functions sponsored by the firm or employer as well as travel for the firm or employer) 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.

[3] A lawyer’s use of peremptory challenges is addressed by Rule 3.4(g). A lawyer does not violate Rule 9.1 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).

[4] The D.C. Human Rights Act, D.C. Code § 2-1402.11 (2001), and federal law also contain certain prohibitions on discrimination in employment.

[5] The investigation and adjudication of discrimination claims may involve particular expertise of the kind found within the D.C. Office of Human Rights and the federal Equal Employment Opportunity Commission. These agencies have, in appropriate circumstances, the power to award remedies to the victims of discrimination, such as reinstatement or back pay, which extend beyond the remedies that are available through the disciplinary process. Remedies available through the disciplinary process include such sanctions as disbarment, suspension, censure, and admonition, but do not extend to monetary awards or other remedies that could alter the employment status to take into account the impact of prior acts of discrimination.

[6] If proceedings are pending before other organizations, such as the D.C. Office of Human Rights or the Equal Employment Opportunity Commission, the processing of complaints by Disciplinary Counsel may be deferred or abated where there is substantial similarity between the complaint filed with Disciplinary Counsel and material allegations involved in other proceedings. See §19(d) of Rule XI of the Rules Governing the District of Columbia Bar.

[7] The prior version of Rule 9.1 included “physical handicap” among the disallowed bases for harassment and discrimination. That basis now is subsumed within the new category of “disability.”