ABA Model Rule 8.4(g) Efforts in Montana

Status Of Action in Montana

March 2019
Status – The Montana Supreme Court chose not to adopt ABA Model Rule 8.4(g).

On March 1, 2019, the State Bar of Montana, along with its Ethics Committee, petitioned the Supreme Court of Montana to revise 18 rules of the Montana Rules of Professional Conduct. In its Memorandum in Support of Petition, the State Bar of Montana mentioned in a footnote (at 3, n.2) that Montana Rule of Professional Conduct Rule 8.4(g) was not included in the review as it had “earlier been the subject of Court attention … and the Supreme Court chose not to adopt the ABA’s Model Rule 8.4(g).”

April 12, 2017
The Montana Legislature passed a joint resolution in which it condemned ABA Proposed Model Rule 8.4(g). In addition, Professor Volokh, who has been an outspoken opponent of the proposed rule, wrote an article regarding the move by the Montana Legislature.

On April 10, 2017, the Montana Office of Disciplinary Counsel filed comments with the Montana Supreme Court opposing adoption of ABA Model Rule 8.4(g) by the Montana Supreme Court, noting that the rule is overly broad.

December 2016
Christian Legal Society filed a comment letter with the Montana Supreme Court, which is considering adopting Model Rule 8.4(g). The deadline for submitting comment letters, originally December 9, has been extended by order of the Montana Supreme Court until April 21, 2017.

October 2016
The Montana Supreme Court is considering amending Rule 8.4 of the Montana Rules of Professional Conduct to include ABA Model Rule 8.4(g). The Montana Supreme Court issued an order opening a comment period until December 9, 2016, accepting public comment on the proposed rule.

Proposed Rule Changes in Montana

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 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.

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.

[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 discrimiatory 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 or other law. A lawyer may charge and collect reasonable fees and expenses for 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).



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