Recent Developments in Ethics: New ABA Model Rule 8.4(g): Is this Rule Good for Kansas? Suzanne Valdez

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1 Recent Developments in Ethics: New ABA Model Rule 8.4(g): Is this Rule Good for Kansas? Suzanne Valdez May 17-18, 2018 University of Kansas School of Law

2 New ABA Model Rule 8.4(g): Is This Ethics Rule Good for Kansas? Recent Developments in the Law Presented by Suzanne Valdez, Clinical Professor of Law University of Kansas School of Law I. Introduction and Legislative History Behind ABA Model Rule 8.4(g) The genesis by the ABA to adopt a stand-along anti-discrimination/harassment rule goes back to the mid-1990s. These efforts were unsuccessful and the only vague reference to anti-discrimination/harassment misconduct is mentioned on old Comment 3 to Model Rule 8.4(d) which stated: [3] 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. (Emphasis added.) Note this comment referenced lawyers misconduct that is prejudicial to the administration of justice. Recent efforts to pass an anti-discrimination/harassment rule are tied to the ABA s official effort in 2008 to create specific goals to serve its mission, which is: to serve equally our members, our profession, and the public by defending liberty, and delivering justice as the national representative of our legal profession. In furtherance of this mission, the ABA created four goals. Goal number three is: Eliminate bias and enhance diversity. Beginning in mid-2014 the new ABA Model Rule 8.4(g), known as Resolution 109, was launched from language taken from old Comment 3. The rule underwent five different versions before it was passed at the ABA Annual Meeting in Chicago in August Interestingly, only Version 2 was presented to the members at large, the broader bar membership, and the public. Version 2 generated numerous comments, and a vast majority of those comments expressed concern and opposition to the new rule. Many stated that Comment 3 was sufficient to guide application of Rule 8.4(d), which states that it is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice.

3 Version 5 of Resolution 109, which is the version that was ultimately adopted by the ABA, was proposed on August 3, 2016, and it was approved at the ABA annual meeting on August 8, 2016 without any public comment or debate. Resolution 109 evolved through three separate versions in two weeks before its passage. II. Kansas Rule of Professional Conduct 8.4 Kansas Rules of Professional Conduct 8.4 Maintaining the Integrity of the Profession: 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; (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) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law. (Emphasis added.) Comment [1] 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. [2] 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 offense 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

4 that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or 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. [3] 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. [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 such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization. *** Kansas did NOT adopt old Comment 3 to ABA Model Rule 8.4. III. New ABA Model Rule 8.4(g) ABA Model Rule Maintaining The Integrity Of The Profession 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; (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) 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

5 in accordance with Rule This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (Emphasis added.) IV. Potential Conflict With Other Kansas Rules of Professional Conduct 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1.3 Client-Lawyer Relationship: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

6 (4) each affected client gives informed consent, confirmed in writing. 2.1 Counselor: Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. 6.2 Public Service: Accepting Appointments A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the rules of professional conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. V. Constitutional Issues Potentially Implicated by Adoption and Application of ABA Model Rule 8.4(g) The materials related to this subsection were drafted by Professor Stephen R. McAllister, who teaches Constitutional Law at the University of Kansas School of Law. 1 They are included here with his permission. Potential constitutional issues include Due Process and First Amendment concerns. In the area of First Amendment rights, there are three possible protections that Rule 8.4(g) may threaten: (1) freedom of religion; (2) freedom of association; and (3) freedom of speech. VI. Update on Adoption of ABA Model Rule 8.4(g) Kansas has NOT adopted the rule. There is no formal Supreme Court committee studying this rule. 1 Stephen R. McAllister is currently on leave from the University of Kansas School of Law.

7 Arizona, Illinois, Montana, Pennsylvania, Nevada, Utah, New Jersey, Tennessee, and Louisiana are considering/studying the rule. Colorado and South Dakota have tabled further consideration of the rule. Texas and South Carolina attorneys general have opined that the rule is unconstitutional. Montana legislature adopted a Joint Resolution finding the rule is unconstitutional. Illinois State Bar Association has rejected the rule. Tennessee Supreme Court has denied adoption of the rule. Vermont adopted an expanded version of the rule.

8 Constitutional Issues Potentially Implicated By Adoption and Application of ABA Model Rule 8.4(g) Stephen R. McAllister Due Process: Because disciplinary rules are enforced by state actors and because a law license is property protected by the Fourteenth Amendment, procedural due process requirements will apply to any enforcement of Rule 8.4(g). The Kansas disciplinary process in general has numerous requirements and comports with constitutional due process requirements. However, due process also requires that those subject to a state sanction for violating a law, regulation or rule must have fair notice of the prohibited conduct in advance of any alleged violation. This is where Rule 8.4(g) could become problematic because of its breadth and potential uncertainty about the situations and conduct it might or might not reach. Some violations may be obvious so that no prior case or similar situation is required to apply the rule in fairness. But situations that are novel or at the margins may well raise questions about fair notice. What about, for example, implicit bias and the reason to know standard of 8.4(g)? See, e.g., United States v. Lanier, 520 U.S. 259 (1997) (state judge who sexually assaulted parties to cases and court employees had fair notice that his conduct was prohibited by 18 U.S.C. 242, even though no similar case had ever been prosecuted. The test is whether, in light of pre-existing law, the unlawfulness of the defendant s conduct is apparent.). See also Gentile v. State Bar of Nevada, 501 U.S (1991) (discussed below in the Freedom of Speech section). First Amendment Rights: 1. Freedom of Religion Because the federal Religious Freedom Restoration Act (RFRA) does not apply to the States, and the more limited federal Religious Land Use and Institutionalized Persons Act (RLUIPA) applies but does not cover attorney discipline, the primary religious rights protection for attorneys accused of violating Rule 8.4(g) will be the Free Exercise Clause of the First Amendment.

9 Under the Free Exercise Clause, a law is constitutional so long as it is (1) neutral and (2) generally applicable. That is the test of Employment Division v. Smith, 494 U.S. 872 (1990). A law that only purports to be neutral, but which actually targets religion, is unconstitutional. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). And a law that is not neutral towards religious identity and beliefs will violate the Free Exercise Clause. Trinity Lutheran Church of Columbia v. Comer, 2017 WL (June 26, 2017). Two possible problems with Rule 8.4(g): (1) although it appears to be neutral and generally applicable on its face, at least arguably, it might well be applied in a fashion that targets religious beliefs and expression by attorneys; (2) the Supreme Court long has declared and emphasized that religious beliefs are absolutely protected by the First Amendment, see, e.g., Employment Division v. Smith, 494 U.S. 872 (1990); Church of the Lukumi Babalu, 508 U.S. at 533 ( a law targeting religious beliefs as such is never permissible ), and such religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. Thomas v. Review Bd. Of Indiana Employment Sec. Division, 450 U.S. 707, 714 (1981). If Rule 8.4(g) were applied to discipline an attorney for essentially expressing a sincerely held religious belief (no matter how offensive that belief might be to others), and absent any conduct detrimental to others connected to the expression of belief, such an application of the rule would raise serious free exercise concerns. 2. Freedom of Association Although not always as strongly protected as speech rights, the Supreme Court has recognized significant rights to associate with groups without punishment or other governmental interference. For instance, the Court has struck down a state court order requiring disclosure of the names and addresses of members of an association. NAACP v. Patterson, 357 U.S. 449 (1958). And the Court has specifically precluded state bar disciplinary authorities from punishing an association that solicited clients for cases that would further the association s causes and agenda. NAACP v. Button, 371 U.S. 415 (1963). More recently, on the flip side, the Court also has invoked associational rights to protect private persons and entities from forced association with others who do not share the association s viewpoints or beliefs. See, e.g., Boy Scouts of America v. Dale,

10 530 U.S. 640 (2000) (Boy Scouts cannot be compelled under a state nondiscrimination law to accept gay men as scout leaders); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (privately organized St. Patrick s Day parade had First Amendment associational and speech rights that permitted it to exclude participation by groups that did not share the parade organizer s views and intended messages). If Rule 8.4(g) is applied to effectively punish attorneys for membership in disfavored groups, the rule may well raise First Amendment right of association concerns. 3. Freedom of Speech Because Rule 8.4(g) obviously might be invoked based on statements an attorney makes, free speech interests are potentially implicated. Traditionally, the Supreme Court did not accord lawyers free speech rights in the context of practicing law, but that changed in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), when the Court struck down an absolute ban on lawyer advertising. Nonetheless, attorneys do not have the same speech rights as would a private citizen speaking on matters of public concern. Instead, the Court has held that the state needs only a rational basis for requiring an attorney to disclose certain accurate and truthful information about attorney services. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). Most pertinent perhaps for purposes of considering Rule 8.4(g) is the Court s decision in Gentile v. State Bar of Nevada, 501 U.S (1991). In Gentile, a criminal defense attorney was disciplined for statements he made in a press conference after his client was charged but before trial. The basis for discipline was a Nevada rule that prohibited lawyers from making extrajudicial statements that a lawyer knows or reasonably should know would have a substantial likelihood of materially prejudicing an adjudicative proceeding. One majority of the Supreme Court invalidated the discipline on the ground that the Nevada rule was so imprecise that discriminatory enforcement was a real possibility, in violation of due process and free speech protections. In essence, the Court found the rule too vague and potentially broad to give any comfort either (1) that attorneys could know in advance what statements they could or could not make or (2) that enforcers of the rule would be constrained in any meaningful way to protect against discriminatory application of the rule. A different majority of the Court, however, emphasized that lawyers speech rights in the practice of law are more limited than those of the press or private citizens. Lawyers speech can be circumscribed in the courtroom, outside the courtroom with

11 regard to pending cases, and when soliciting legal business. Thus, a majority held that the Nevada rule s standard that a lawyer could be punished for speech that has a substantial likelihood of material prejudice is generally constitutional under the First Amendment. Were Rule 8.4(g) limited to statements and conduct that threatened a substantial likelihood of material prejudice to pending proceedings, it would almost certainly be constitutional. But Rule 8.4(g) is not so limited. Two more recent cases also merit brief mention. First, in Williams-Yulee v. Florida Bar, 135 S. Ct (2015), the Supreme Court upheld a Florida rule that prohibited judicial candidates running for election from personally soliciting contributions from potential donors. The Court reasoned that such a rule was justified by the state s interest in preserving public confidence in the integrity of the state s judiciary. Second, in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), the Virginia Supreme Court upheld a state rule that required attorney blogs to disclose certain accurate information (that no particular results in any given case are guaranteed), but invalidated a state rule that precluded attorneys from blogging information about concluded cases in which they had participated. Attorneys do have speech rights in the practice of law, but those rights are not unlimited, nor are they as strong as the rights of the press and private citizens. Rule 8.4(g), at a minimum, may raise substantial free speech concerns if applied to statements made by attorneys in connection with their practice of law, especially if those statements are not accompanied by any action or conduct that adversely affects others or any pending litigation. Free speech concerns also will arise if an attorney is disciplined under Rule 8.4(g) for statements not made in the context of practicing law, such as expressing personal views in a public forum.