ABA Model Rule 8.4(g) Efforts in Texas

Status Of Action In Texas

January 2021
Status – The State Bar of Texas is studying ABA Model Rule 8.4(g).

The State Bar of Texas provided notice that its Board of Directors will meet January 22, 2021, at 9:00 CST for its next quarterly meeting. On the agenda is a report from the Discipline & Client Attorney Assistance Program Committee regarding its study of ABA Model Rule 8.4(g) and Texas Disciplinary Rules of Professional Conduct Rule 5.08. The public may watch the meeting, which will be available on the State Bar of Texas YouTube channel.

September 2020
The State Bar of Texas Board of Directors held a meeting on September 10, 2020, where one of the items discussed was ABA Model Rule 8.4(g). After hearing from numerous speakers, the directors voted to refer the model rule to the board’s Discipline and Client Attorney Assistance Program (DCAAP) Committee. The DCAAP Committee will study the model rule, along with existing Rule 5.08 of the Texas Disciplinary Rules of Professional Conduct, and will report back to the board its recommendations, if any, at a future meeting. The committee will also consider public input that was submitted before and during the board meeting.

On September 9, one day before the State Bar of Texas Board of Directors is to meet to discuss, among other items, the referral of ABA Model Rule 8.4(g) to the board’s Discipline and Client Attorney Assistance Program Committee, Texas Attorney General Ken Paxton warned the board of directors that the model rule is unconstitutional and violates attorneys’ free speech and religious rights.

December 2016
The Texas Attorney General issued an advisory opinion in December 2016 finding that ABA Model Rule 8.4(g) is unnecessary to protect against prohibited discrimination in the State of Texas and, were it to be adopted, a court would likely invalidate it as unconstitutional.

Proposed Rule Changes in Texas

Current Rule 5.08 Prohibited Discriminatory Activities
(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

(b) Paragraph (a) does not apply to a lawyer’s decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as “confidential information” under these Rules. See Rule 1.05(a), (b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:

(i) is necessary in order to address any substantive or procedural issues raised by the proceeding;

(ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules
of practice and procedure.

Current Comment
1. Subject to certain exemptions, paragraph (a) of this Rule prohibits willful expressions of bias or prejudice in connection with adjudicatory proceedings that are directed towards any persons involved with those proceedings in any capacity. Because the prohibited conduct only must occur “in connection with” an adjudicatory proceeding, it applies to misconduct transpiring outside of as well as in the presence of the tribunal’s presiding adjudicatory official. Moreover, the broad definition given to the term “adjudicatory proceeding” under these Rules means that paragraph (a)’s prohibition applies to many settings besides conventional litigation in federal or state courts. See Preamble: Terminology (definitions of “Adjudicatory Proceeding” and “Tribunal”).

2. The Rule, however, contains several important limitations and exemptions. The first, found in paragraph (a), is that a lawyer’s allegedly improper words or conduct must be shown to have been “willful” before the lawyer may be subjected to discipline.

3. In addition, paragraph (b) sets out four exemptions from the prohibition of paragraph (a). The first is a lawyer’s decision whether to represent a client. The second is any communication made by the lawyer that is “confidential” under Rule 1.05(a) and (b). The third is a lawyer’s communication that is necessary to represent a client properly and that complies with applicable rulings and orders of the tribunal as well as with applicable rules of practice or procedure.

4. The fourth exemption in paragraph (b) relates to the lawyer’s words or conduct in selecting a jury. This exemption ensures that a lawyer will be free to thoroughly probe the venire in an effort to identify potential jurors having a bias or prejudice towards the lawyer’s client, or in favor of the client’s opponent, based on, among other things, the factors enumerated in paragraph (a). A lawyer, should remember, however, that the use of peremptory challenges to remove persons from juries based solely on some of the factors listed in paragraph (a) raises separate constitutional issues.

Current Rule 8.04 Misconduct
(a) A lawyer shall not:

(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of
another, whether or not the violation occurred in the course of a client-lawyer relationship;

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) engage in conduct constituting obstruction of justice;

(5) state or imply an ability to influence improperly a government agency or official;

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

(7) violate any disciplinary or disability order or judgment;

(8) fail to timely furnish to the Chief Disciplinary Counsels office or a district grievance committee a
response or other information as required by the Texas Rules of Disciplinary Procedure, unless he
or she in good faith timely asserts a privilege or other legal ground for failure to do so;

(9) engage in conduct that constitutes barratry as defined by the law of this state;

(10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure relating to
notification of an attorneys cessation of practice;

(11) engage in the practice of law when the lawyer is on inactive status, except as permitted by
section 81.053 of the Government Code and Article XIII of the State Bar Rules, or when the lawyer’s
right to practice has been suspended or terminated, including, but not limited to, situations where
a awyer’s right to practice has been administratively suspended for failure to timely pay required
fees or assessments or for failure to comply with Article XII of the State Bar Rules relating to
Mandatory Continuing Legal Education; or

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the
practice of law.

(b) As used in subsection (a)(2) of this Rule, “serious crime” means barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.

Current Comment
1. There are four principal sources of professional obligations for lawyers in Texas: these rules, the State Bar Act, the State Bar Rules, and the Texas Rules of Disciplinary Procedure (TRDP). All lawyers are presumed to know the requirements of these sources. Rule 8.04(a)(1) provides a partial list of conduct that will subject a lawyer to discipline.

2. Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such implication. Traditionally in this state, the distinction has been drawn in terms of those crimes subjecting a lawyer to compulsory discipline, criminal acts relevant to a lawyer’s fitness for the practice of law, and other offenses. Crimes subject to compulsory discipline are governed by TRDP, Part VIII. In addition, although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for criminal acts that indicate a lack of those characteristics relevant to the lawyer’s fitness for the practice of law. A pattern of repeated criminal acts, even ones of minor significance when considered separately, can indicate indifference to legal obligations that legitimately could call a lawyer’s overall fitness to practice into question. See TRDP, Part VIII; Rule 8.04(a)(2).

3. A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation exists. The provisions of Rule 1.02(c) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges to legal regulation of the practice of law.

4. 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.



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