ABA Model Rule 8.4(g) Efforts in North Dakota
Status of Action in North Dakota
Status – The North Dakota Supreme Court’s Joint Committee on Attorney Standards declined to adopt ABA Model Rule 8.4(g).
Professor Michael McGinniss of the University of North Dakota School of Law published an article entitled Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession. The article provides a thorough analysis of the controversy surrounding ABA Model Rule 8.4(g).
The North Dakota Supreme Court’s Joint Committee on Attorney Standards, after discussion of ABA Model Rule 8.4(g) at its September 15 meeting, voted to reject ABA Model Rule 8.4(g). Members of the committee raised concerns ranging from the breadth of the rule to First Amendment issues.
The North Dakota Supreme Court requested that its Joint Committee on Attorney Standards consider the recent amendment by the American Bar Association to its Model Rule 8.4(g). After discussion of the model rule at its March 24 meeting, the committee voted to table the issue until the committee’s meeting in the fall of 2017.
Proposed Rule Changes in North Dakota
Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate these rules, knowingly assist or induce another to do so, or do so through the acts of another;
(b) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;
(c) state or imply an ability to influence improperly a government agency or official;
(d) engage in conduct that is prejudicial to the administration of justice, including to knowingly manifest through words or conduct in the course of representing a client, bias or prejudice based upon race, sex, religion, national origin, disability, age, or sexual orientation, against parties, witnesses, counsel or others, except when those words or conduct are legitimate advocacy because race, sex, religion, national origin, disability, age, or sexual orientation is an issue in the proceeding; or
(e) engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer’s certificate of admission.
Many kinds of wrongful conduct reflect adversely on fitness to practice law. Some kinds, however, do not. In the past, the distinction between these two types of wrongful conduct was made on the basis of “moral turpitude.” That test has been abandoned in favor of a more functional analysis. The concept of “moral turpitude” had been construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that had 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 necessary for the responsible practice of the profession. Offenses involving violence, dishonesty or breach of trust, or serious and unjustifiable interference with the administration of justice, are likely to be in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations.
The legislature has adopted the functional test; it has provided, in Section 27-14-02 of the North Dakota Century Code, for the revocation or suspension of the certificate of admission of any lawyer who has committed an offense determined by the North Dakota Supreme Court to have a direct bearing on the lawyer’s ability to serve the public as an attorney and counselor at law. The legislature has also provided for revocation or suspension in circumstances of a failure to perform the duties of the office and several specific instances of conduct; these are identified in the balance of Section 27-14-02, and in the sections referred to generally or by number in that section, including 27-13-01 (duties of attorneys), 27-13-08 (misconduct of attorneys), 27-13-09 (permitting use of the lawyer’s name), 27-13-11 (involvement in the defense while a partner of the prosecutor), and 27-13-12 (involvement in the defense after action is state’s attorney).
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 to the 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 attorney.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.
Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 12/13/85, 01/10/86 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 06/16/98, 10/14/98, 06/08/99, 11/19/99, and 03/23/00.
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.
 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).
 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.
 A trial judge’s finding that peremptory challenges were exercised on a discriminatory 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 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).