ABA Model Rule 8.4(g) Efforts in Nebraska
Status of Action in Nebraska
Status – The Nebraska Supreme Court is considering a proposal to amend its rule of professional conduct.
On May 2, CLS submitted a comment letter to the Nebraska Supreme Court urging it to not adopt the proposed revision to rule § 3-804 of the Nebraska Rules of Professional Conduct. The Nebraska Attorney General also submitted a letter to the Nebraska Supreme Court recommending that the court not adopt the proposed amendments. Attorney General Peterson called the proposed amendment “unconstitutional” and opined that the “sweeping scope and vague language [of the proposed rule] will chill attorneys’ constitutionally protected speech throughout Nebraska.”
The Women in the Law Section of the Nebraska State Bar Association (NSBA), in consultation with the Nebraska Counsel for Discipline, drafted a proposed revision to rule § 3-804 to more specifically prohibit harassment and discrimination. The NSBA House of Delegates voted to petition the Nebraska Supreme Court to consider these proposed revisions. Prior to considering the petition, the Nebraska Supreme Court has posted the NSBA’s proposed revisions for comment. Anyone desiring to submit a public comment for the Supreme Court’s consideration should do so via email to firstname.lastname@example.org, with the following text listed in the email subject line: Neb. Ct. R. of Prof. Cond. § 3-508.4. Misconduct. Comments will be accepted through May 2, 2022.
Proposed Rule Changes in Nebraska
Current Rule §3-508.4 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. Once a lawyer is employed in a professional capacity, the lawyer shall not, in the course of such employment, engage in adverse discriminatory treatment of litigants, witnesses, lawyers, judges, judicial officers or court personnel on the basis of the person’s race, national origin, gender, religion, disability, age, sexual orientation or socioeconomic status. This subsection does not preclude legitimate advocacy when these factors are issues in a proceeding.
(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; or
(g) willfully refuse, as determined by a court of competent jurisdiction, to timely pay a support order, as such order is defined by Nebraska 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 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.
 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(f) 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.
Proposed Rule §3-508.4 Misconduct
It is professional misconduct for a lawyer to:
[No change to (a) – (c)]
(d) engage in conduct that is prejudicial to the administration of justice;
[No change to (e) – (g)].
(h) 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 connection with a lawyer’s professional activities; or
(i) 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 that reflects adversely on the lawyer’s fitness as a lawyer. Whether an act of discrimination or harassment reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including:
1) the seriousness of the act:
2) whether the act was part of a pattern of prohibited conduct: and
3) whether the act was committed in connection with the lawyer’s professional activities.
(j) Subsections (h) and (i) do not preclude legal advice and advocacy when harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status are at issue.
 Inserts “The provisions of paragraph (b) concern criminal acts” at the beginning of the paragraph.
 becomes 
 becomes 
New  and 
 A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (h).
 Whether an unlawful discriminatory act reflects adversely on fitness as a lawyer is determined after consideration of all relevant circumstances, including the three factors listed in paragraph (i). It is not required that the listed factors be considered equally, nor is the list intended to be exclusive. For example, it would also be relevant that the lawyer reasonably believed that his or her conduct was protected under the state or federal constitution or that the lawyer was acting in a capacity for which the law provides an exemption from civil liability.