BA Model Rule 8.4(g) Efforts in Maine

Status of Action in Maine

June 2019
Status – The Maine Supreme Judicial Court adopted an amendment to its misconduct rule.

New Maine Rule of Professional Conduct Rule 8.4(g) not ABA Model Rule 8.4(g)
On June 17, Professor Alberto Bernabe of The John Marshall Law School published an article in which he explains the differences between ABA Model Rule 8.4(g) and the recently adopted Maine Rule of Professional Conduct Rule 8.4(g).

May 2019
Maine Supreme Judicial Court Adopts Amendment to Misconduct Rule
On May 13, the State of Maine Supreme Judicial Court issued an Order adopting an amendment to the Maine Rules of Professional Conduct Rule 8.4. The amendment added new section (g) to Maine’s misconduct rule. The new Maine Rule 8.4(g) is similar, but not identical, to ABA Model Rule 8.4(g).

While new section (g) of the Maine Rules of Professional Conduct Rule 8.4 may, at first glance, appear to be ABA Model Rule 8.4(g), it is, in fact, not ABA Model Rule 8.4(g). Indeed, Maine’s Rule 8.4(g) is narrower than ABA Model Rule 8.4(g). First, Maine’s Rule 8.4(g) does not include “marital status” and “socioeconomic status” in the list of types of prohibited discrimination. Second, Maine’s Rule 8.4(g)(1) provides a more definitive explanation of what constitutes “discrimination” compared to the ABA model rule, limiting it to “conduct or communication a lawyer knows or reasonably should know manifests an intent to treat a person as inferior . . . disregard relevant considerations of individual characteristics or merit . . . or cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.” ABA Model Rule 8.4(g), on the other hand, broadly defines “discrimination” as “harmful verbal or physical conduct that manifests bias or prejudice towards others.” Third, Maine’s Rule 8.4(g) limits conduct or communication “related to the practice of law” as that “occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; or operating or managing a law firm or law practice.” ABA Model Rule 8.4(g) is broader in that it also includes “participating in bar association, business or social activities in connection with the practice of law” in its definition of “related to the practice of law.”

August 2018
The Maine Supreme Judicial Court will be holding a public hearing to receive oral comments on a proposed amendment adding Rule 8.4(g) to the Maine Rules of Professional Conduct to prohibit harassment and discrimination. The hearing will be at 1:30 on Tuesday, October 23, 2018, in Courtroom 12 of the Cumberland County Courthouse in Portland, Maine.

On August 17, 2018, CLS filed with the Maine Supreme Judicial Court supplemental comments regarding Proposed Rule 8.4(g). CLS had previously submitted comments before the close of the comment period on June 5, 2018, but filed the supplemental comments to bring to the attention of the Maine Supreme Judicial 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), which was after the comment period in Maine closed.

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).

June 2018
On June 5, 2018, CLS filed its comment letter with the Maine Supreme Judicial Court.

May 2018
Comments due by 4:00 pm June 5, 2018
The Maine Supreme Judicial Court is considering amending its current misconduct rule to add ABA Model Rule 8.4(g). On May 8, 2018, the Maine Supreme Judicial Court issued a Notice of Opportunity to Comment, opening a comment period on proposed rules changes, which include adding a new subsection as follows: “It is professional misconduct for a lawyer to: . . . (g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonable should know is harassment, or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.”

According to the Advisory Committee Note, subsection (g) is added and is based on ABA Model Rule of Professional Conduct 8.4(g), with some modifications.

The Committee has omitted the final two sentences of the ABA Model Rule, not out of disagreement with their substance, but because they are unnecessary to the rule’s text. Attorneys are free to accept and decline representations as they see fit, in accordance with Rule 1.16, and attorneys do not run afoul of subsection (g) by offering legal advice or advocacy on behalf of clients consistent with the rules.

The Committee endorses the substance of those omitted sentences. The Committee has omitted from the list of types of prohibited discrimination “marital status” and “socioeconomic status.” The Committee considered the Legislature’s statement of anti-discrimination policy in the Maine’s Human Rights Act, 5 M.R.S. § 4552, as well as application of that Act, in coming to the Committee’s own conclusions on what to include or not include in a rule of attorney discipline. Comments [3] through [5] to the ABA Model Rule provide much useful guidance in the application of Model Rule 8.4(g). Historically, the Maine Supreme Judicial Court has not adopted Comments when adopting amendments to the Rules of Professional Conduct. The Advisory Committee considers it important to alert practitioners to the following points regarding the application of Maine’s Rule 8.4(g); a number of these points grow out of Comments [3] through [5] to ABA Model Rule 8.4.

Pursuant to the notice, the Maine Supreme Judicial Court is accepting comments on proposed amendments to both the Maine Rules of Professional Conduct and the Maine Bar Rules. In particular, the Maine Supreme Judicial Court invites comments on proposed amendments to the Maine Rules of Professional Conduct to prohibit harassment and discrimination and proposed amendments to the Maine Bar Rules to require attorneys to attend continuing education on harassment and discrimination.

Comments may be submitted in writing to the Clerk of the Maine Supreme Judicial Court no later than 4:00 pm on Tuesday, June 5, 2018. Comments may be emailed to lawcourt.clerk@courts.maine.gov or mailed to the following address:

Matthew Pollack, Executive Clerk
Maine Supreme Judicial Court
205 Newbury Street Room 139
Portland, Maine 04112-0368

All comments must contain the name and mailing address of the individual submitting the comments and the name, mailing address, and primary telephone number of the organization (if any) on whose behalf the comments are submitted. Comments submitted via email must be in PDF format.

Rule Changes in Maine

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

(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal or unlawful 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 Maine Rules of Professional Conduct, the Maine Bar Rules or law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or law.

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

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal or unlawful 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 Maine Rules of Professional Conduct, the Maine Bar Rules or law;

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

(g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonable should know is harassment, or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.

    (1) “Discrimination” on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means conduct or communication that a lawyer knows or reasonably should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in this paragraph; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.

    (2) “Harassment” on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means derogatory or demeaning conduct or communication and includes, but is not limited to, unwelcome sexual advances, or other conduct or communication unwelcome due to its implicit or explicit sexual content.

    (3) “Related to the practice of law” as used in the section means occurring in the course of representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; or operating or managing a law firm or law practice.

    (4) Declining representation, limiting one’s practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g).