Connecticut

ABA Model Rule 8.4(g) Efforts in Connecticut


Status of Action in Connecticut

May 2021
Status - The Rules Committee of the Connecticut Superior Court is considering adopting ABA Model Rule 8.4(g).

On May 6, 2021, Christian Legal Society filed its comment letter with the Rules Committee. 

On Monday, May 10, 2021 at 10:00 a.m. the Rules Committee of the Superior Court will conduct a public hearing for the purpose of receiving comments concerning Practice Book revisions that are being considered by the Committee and revisions that were adopted by the judges on an interim basis. All revisions are posted on the Judicial Branch website at https://www.jud.ct.gov/pb.htm and printed in the April 27, 2021, issue of the Connecticut Law Journal. The public hearing will be followed by a Rules Committee meeting.

Pursuant to subsection (c) of section 51-14 of the Connecticut General Statutes, the Supreme Court has designated the Rules Committee to conduct this public hearing also for the purpose of receiving comments on any proposed new rule or any change in an existing rule that any member of the public deems desirable.

Comments may be forwarded to the Rules Committee by email at RulesCommittee@jud.ct.gov or may be forwarded to the Rules Committee at the following address and should be received on or before Monday, May 3, 2021:

Rules Committee of the Superior Court
Attn: Counsel to the Committee
P.O. Box 150474
Hartford, CT 06115-0474

The Rules Committee public hearing will be conducted electronically using Microsoft Teams communication and collaboration platform, and will be broadcast on the Judicial Branch’s YouTube channel. Individuals who would like to access the public hearing and/or meeting so that they may speak at the hearing, may do so by clicking here. Individuals who wish to access the public hearing and/or meeting but who do not wish to speak at the hearing, may do so by clicking https://youtu.be/QpBZBl4ywTY.

It is important that certain procedures are followed by every individual who wishes to access the public hearing and/or meeting through Microsoft Teams, and for those who wish to speak at the public hearing. All individuals who access the public hearing and meeting must at all times act in a professional and respectful manner. Any individual whose conduct is deemed by the Rules Committee to be disruptive or inappropriate will be removed from the public hearing or meeting.

Individuals who would like to speak at the public hearing should access the hearing one-half hour before the hearing begins in order to be recognized and placed in line while waiting to speak. Each speaker will be allowed five minutes to offer remarks. Anyone who believes that they cannot cover their remarks within the five minute time period allowed during the public hearing, and anyone who does not wish to speak at the public hearing but wishes to offer comments on the proposed revisions, may submit their written comments to the Rules Committee.

January 2021
The Rules Committee of the Connecticut Superior Court met on January 11, 2021, and the meeting included discussion of Proposed Rule 8.4(7). Since the committee's last meeting, both the Statewide Grievance Committee and the Office of Chief Disciplinary Counsel weighed in on the proposed rule. The committee decided to turn the proposal over to a working group to study the proposed rule in light of all the comments and come back to the committee with a proposal that the committee could discuss and potentially act upon. No timeframe was discussed.

November 2020
On November 25, Center Director Kim Colby published an article on The Federalist Society blog post discussing the comment period happening in Connecticut. 

On November 16, the Rules Committee of the Connecticut Superior Court met for its regularly scheduled meeting, and Proposed Rule 8.4(7), Connecticut's version of ABA Model Rule 8.4(g), was on the agenda. At the meeting, the Rules Committee chose to table discussion of the proposed rule until its next meeting, which will be January 11, 2021. The reasons for the postponement of the discussion appear to be twofold: (1) the committee members did not have sufficient time prior to the November meeting to review all of the comments submitted; and (2) the fact that the proposed rule was never referred to the disciplinary counsel or the state grievance committee for consideration. 

The Committee also agreed to permit additional comments from the general public until close of business on December 4, 2020. Connecticut attorneys who have not already done so should submit comments opposing the proposed rule. CLS has prepared an updated background document that provides information on ABA Model Rule 8.4(g) and why Connecticut should not adopt Proposed Rule 8.4(7). In the alternative, attorneys can submit comments using this sample comment letter as a model, which can also be downloaded here. Comments should be sent to the Rules Committee at RulesCommittee@jud.ct.gov no later than December 4, 2020.

On November 2, CLS submitted a comment letter to the Rules Committee of the Connecticut Superior Court opposing adoption of Proposed Rule 8.4(7). CLS' Center for Law and Religious Freedom has prepared an informational document explaining why the Connecticut Superior Court should not adopt Proposed Rule 8.4(7).

Connecticut attorneys should submit comments opposing the rule to the Rules Committee of the Superior Court. CLS has prepared a background document that provides background on ABA Model Rule 8.4(g) and why Connecticut should not adopt Proposed Rule 8.4(7). In the alternative, attorneys can submit comments using this sample comment letter as a model, which can also be downloaded here. Comments should be sent to the Rules Committee no later than November 12, 2020, by emailing it to RulesCommittee@jud.ct.gov

October 2020
The Connecticut Bar Association published a Frequently Asked Question sheet regarding its Proposed Rule 8.4(7). It should be noted that Connecticut is one of the states that addresses bias and prejudice in the comment to the rules of professional conduct rather than in a black-letter rule. This comment predates passage of ABA Model Rule 8.4(g). 

September 2020
On September 14, the Rules Committee of the Superior Court of Connecticut considered a proposal from an individual attorney to adopt ABA Model Rule 8.4(g), as well as a substitute proposal from the Connecticut Bar Association (CBA) to adopt proposed Rule 8.4(7) to the Connecticut Rules of Professional Conduct. The CBA proposal came from the CBA 8.4(7) Working Group, which met numerous times to develop its Proposed Amended Rule 8.4(7). The CBA noted that between June 15 and September 1, 2020, the Connecticut Bar Association Diversity and Inclusion Committee, Standing Committee on Professional Ethics, Young Lawyers Section, Human Rights and Responsibilities Section, LGBT Section, Women in the Law Section, Veterans and Military Affairs Section, Professionalism Committee, Professional Discipline Section, Litigation Section, and Labor and Employment Section voted approval of Proposed Amended Rule 8.4(7).

Previously, on September 2, the Connecticut Bar Association Legislative and Policy Review Committee had voted unanimously, with one abstention, that the proposal had merit and should be referred to the CBA House of Delegates. The House of Delegates, at a special meeting on September 10, voted to approve Proposed Amended Rule 8.4(7), in a vote of 39 in favor, 11 opposed, and 1 abstention.

At the September 14 meeting, the Rules Committee discussed the matter, noting that the CBA had not provided all CBA members the opportunity to review and comment on the proposal. The Committee then tabled the proposal to allow for the CBA’s proposed amendment to be sent to the affinity bar associations and the county bar associations for comment.

June 2020
On June 5, the Rules Committee of the Superior Court of Connecticut (Committee) considered a proposal from an individual attorney to adopt ABA Model Rule 8.4(g). After discussion, the Committee decided to table the proposal until its September meeting to allow the attorney to coordinate with the Connecticut Bar Association (CBA) and to submit additional materials to the Committee for review. On June 15, 2020, the CBA presented the request to amend the Connecticut Rules of Professional Conduct to its House of Delegates, which decided to form a CBA working group to consider the matter.


Proposed Rule Changes in Connecticut

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

(1) 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;

(2) commit a 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 that is prejudicial to the administration of justice;

(5) 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

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

(P.B. 1978-1997, Rule 8.4.) (Amended June 26, 2006, to take effect Jan. 1, 2007.)

Current Official Commentary
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. Subdivision (1), 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 wilfull 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, which 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. Counseling or assisting a client with regard to conduct expressly permitted under Connecticut law is not conduct that reflects adversely on a lawyer’s fitness notwithstanding any conflict with federal or other law. Nothing in this commentary shall be construed to provide a defense to a presentment filed pursuant to Practice Book Section 2-41.

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 subdivision (4) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate subdivision (4). 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 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 a lawyer. 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 8.4(7)
It is professional misconduct for a lawyer to:

(7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital 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, or to provide advice, assistance or advocacy consistent with these Rules.

Proposed Official Commentary
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. Subdivision (1), 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 wilful 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, which 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. Counseling or assisting a client with regard to conduct expressly permitted under Connecticut law is not conduct that reflects adversely on a lawyer’s fitness notwithstanding any conflict with federal or other law. Nothing in this commentary shall be construed to provide a defense to a presentment filed pursuant to Practice Book Section 2-41.

Discrimination and harassment in the practice of law undermine confidence in the legal profession and the legal system. Discrimination includes harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories. Not all conduct that involves consideration of these characteristics manifests bias or prejudice: there may be a legitimate nondiscriminatory basis for the conduct.

Harassment includes severe or pervasive derogatory or demeaning verbal or physical conduct. Harassment on the basis of sex 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 antiharassment statutes and case law should guide application of paragraph (7), where applicable. Where the conduct in question is subject to federal or state antidiscrimination or antiharassment law, a lawyer’s conduct does not violate paragraph (7) when the conduct does not violate such law. Moreover, an administrative or judicial finding of a violation of state or federal antidiscrimination or antiharassment laws does not alone establish a violation of paragraph (7).

A lawyer’s conduct does not violate paragraph (7) when the conduct in question is protected under the First Amendment of the Constitution of the United States or Article First, Section 4 of the Connecticut Constitution.

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 professional activities or events in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity, equity 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 (7). Moreover, no disciplinary violation may be found where a lawyer exercises a peremptory challenge on a basis that is permitted under substantive law. A lawyer does not violate paragraph (7) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of a particular segment of the population 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(1), (2) and (3). 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).

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 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 a lawyer. 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.