By Texie C. Montoya

The history of American Bar Association (“ABA”) Model Rule 8.4(g) is a story of controversy, acceptance, and rejection.  Currently, Idaho remains one of only a handful of states that have expressly declined to adopt some version of Model Rule 8.4(g).

The model rule states:

“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.”^[i]

This article will trace the history of ABA Model Rule 8.4, the addition of 8.4(g), the rejection and acceptance of the Model Rule by other states, and the history and current status of the proposed rule in Idaho.

A brief overview of the ABA Model Rules of Professional Conduct

The ABA Model Rules of Professional Conduct were adopted by the American Bar Association (“ABA”) in 1983 and have been amended several times since then.^[ii] They replaced the ABA’s previous rules, the 1969 Model Code of Professional Responsibility which were preceded by the 1908 Canons of Professional Conduct.^[iii] As we all learned in law school, the ABA Model Rules are a set of guidelines for lawyers’ ethical behavior which cover various aspects of lawyers’ relationships with their clients, the courts, other lawyers, and the public. They also address issues such as advertising, confidentiality, conflicts of interest, competence, fees, and pro bono service. The comments to each rule explain and illustrate the meaning and purpose of the rules and are intended as guides to interpretation of the rules.^[iv]

The Model Rules serve, as the name implies, as a model for the ethics rules of most jurisdictions in the United States, although each state can adopt modified or different rules.

The Rules of Professional Conduct in Idaho

Idaho adopted the ABA Model Rules of Professional Conduct in 1986,^[v] becoming the 16^th state to do so.^[vi] The Idaho Rules of Professional Conduct (“IRPC”) are largely based on the ABA Model Rules, with some “Idaho variations.”^[vii] The IRPC are enforced by the Idaho State Bar and the Idaho Supreme Court,^[viii] which also adopted the comments to the IRPC.^[ix] The rules serve in part as the authority for disciplinary action for lawyers.^[x] The IRPC have been revised several times since their initial adoption, most notably in 2004, following the ABA’s revision of the Model Rules based on the recommendations of the ABA Ethics 2000 Commission.^[xi]

History of Model Rule 8.4(g)

From its inception, Model Rule 8.4 has provided:

“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

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.^[xii]

Beginning in the early 1990s, several ABA groups worked to revise the Model Rule to address bias, harassment, and discrimination.^[xiii] In 1998, anti-harassment language was ultimately adopted as a comment.^[xiv]

In 2008, the ABA adopted a series of goals as an organization.^[xv] Goal III is “Eliminate Bias and Enhance Diversity.”^[xvi] The ABA also identified four of its entities as “Goal III Commissions” – the Commission on Women in the Profession, the Commission on Sexual Orientation and Gender Identity, the Commission on Disability Rights, and the Center for Racial and Ethnic Diversity.^[xvii]

In October 2014, the ABA Standing Committee on Ethics and Professional Responsibility (“SCEPR”) established an informal Working Group on Rule 8.4 following discussion with the four Goal III Commissions.^[xviii]

In July 2015, the SCEPR distributed a preliminary draft of Model Rule 8.4(g) during the 2015 ABA Annual Meeting to solicit feedback.^[xix] In December 2015, an updated version of Model Rule 8.4(g), along with proposed comments, was distributed along with an invitation to a public hearing at the 2016 ABA Midyear Meeting in February.^[xx]

In August 2016, Resolution 109 was presented to the ABA House of Delegates to amend Model Rule 8.4(g) at their 2016 Annual Meeting and it passed.^[xxi] Several states, such as Idaho neighbors Nevada and Utah, solicited comments on the Model Rule soon after its passage by the ABA.^[xxii] Many states proposed revised versions of the Model Rule, including Idaho.^[xxiii] As detailed in the following, some jurisdictions adopted the rule between 2016 and 2019, several other states rejected the rule.

Thus, to address some of the common questions and concerns raised by lawyers and regulators, in July 2020, the ABA’s SCEPR issued a formal opinion to provide guidance on the interpretation and implementation of the rule.^[xxiv] The 14-page formal opinion explains the scope and application of the rule, as well as its relationship to the First Amendment and other ethical rules.^[xxv] It clarifies that the rule does not prohibit legitimate advocacy or advice consistent with the Rules of Professional Conduct, nor does it apply to conduct that is not related to the practice of law.^[xxvi] The formal opinion also explains how the rule should be enforced and what factors should be considered in determining whether a lawyer’s conduct violates the rule.^[xxvii] It provides examples of scenarios that would or would not violate the rule, as well as best practices for lawyers and law firms to comply with the rule and promote diversity and inclusion in the legal profession.^[xxviii]

Acceptance and Rejection in Other States

Prior to the ABA’s adoption of Model Rule 8.4(g), 20 states already had an analogous rule in place, including Idaho’s neighbors Oregon and Washington.^[xxix]

In December 2016, the Texas Attorney General issued an advisory opinion that the rule would violate the First Amendment rights of free speech, free exercise of religion, and freedom of association of Texas lawyers, and that it would be vague and overbroad in its scope and application.^[xxx] The Attorney General also noted that the Texas Disciplinary Rules of Professional Conduct already address issues of attorney discrimination through narrower and clearer language.^[xxxi]

South Carolina, on the other hand, explicitly rejected the rule. In June 2017, the South Carolina Supreme Court declined to adopt ABA Model Rule 8.4(g) into its Rules of Professional Conduct.^[xxxii] The court did not provide any explanation for its decision, but the House of Delegates of the South Carolina Bar and the state attorney general had previously criticized the rule as being vague, overbroad, and unconstitutional.^[xxxiii] They argued that the rule would infringe on lawyers’ First Amendment rights to free speech and free exercise of religion, and would create a chilling effect on lawyers’ ability to zealously represent their clients.^[xxxiv]

Vermont was the first state to adopt Model Rule 8.4(g), in 2017, replacing its former rule that had a similar anti-discrimination provision but with a narrower scope and application.^[xxxv] Vermont Rule 8.4(g) follows the language of the ABA model rule, and adds “color[…] ancestry, [and] place of birth” as additional protected characteristics.^[xxxvi] The rule also provides guidance on how to determine whether conduct is discriminatory or harassing, and what factors may be considered as mitigating or aggravating circumstances.^[xxxvii]

By 2019, five states in addition to Idaho, as discussed in the following, had rejected the new rule, including our neighbor Montana.^[xxxviii] On the other hand, New Mexico, American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands had all joined Vermont in adopting the Model Rule.^[xxxix]

Idaho’s Attempts to Adopt 8.4(g)

In 2017, the Idaho State Bar Board of Commissioners submitted a resolution to amend IRPC Rule 8.4 to include anti-discrimination and anti-harassment provisions based on the ABA Model Rule, but with some modifications.^[xl] The resolution was supported by the Professionalism & Ethics Section of the Idaho State Bar, which had formed a committee (the Anti-Discrimination and Anti-Harassment Committee, which still exists today) to review the ABA Model Rule – the Committee studied the storied development of the rule, as briefly explained previously, and made substantial revisions to narrow its scope and address constitutional concerns.^[xli]

However, the resolution faced opposition from some lawyers and groups who argued that it would infringe on free speech, religious liberty, and client choice. Even so, when the members of the Idaho State Bar voted, the resolution passed with 62% of the vote and was then sent to the Idaho Supreme Court.^[xlii] On September 6, 2018, the Idaho Supreme Court rejected the resolution but “encouraged the Idaho State Bar to revisit this matter in hopes of narrowing the rule to comport with new United States Supreme Court Cases.”^[xliii]

In 2020, the Anti-Discrimination and Anti-Harassment Committee of the Professionalism and Ethics Section of the Idaho State Bar conducted a climate survey – the Climate of the Legal Profession in Idaho 2020 Survey.^[xliv] Based on the survey results, the Committee was determined to continue advocating for Idaho’s adoption of a subsection (g) to IRPC 8.4.^[xlv]

In November 2021, the Idaho State Bar Board of Commissioners submitted a new resolution to the members of the bar, proposing a revised version of the rule, which attempted to address some of the criticisms and concerns raised by the opponents of the original rule as well as the Idaho Supreme Court.^[xlvi] The revised rule narrowed the definition of harassment and discrimination, limited the rule’s application to conduct that is unlawful or severe or pervasive, and clarified that the rule does not limit legitimate advocacy or representation.^[xlvii] The revised rule, however, still faced opposition from many lawyers and groups who maintained that the rule was unnecessary, unconstitutional, and inconsistent with Idaho’s values. And yet, when the members of the Idaho State Bar voted on the new resolution, it too passed (with 67% of the vote) and was then sent to the Idaho Supreme Court.

In January 2023, the Idaho Supreme Court rejected the 2021 version of the proposed addition as well, writing per curiam in a 15-page decision that it “does not pass constitutional muster” citing concerns about its impact on lawyers’ protected speech and calling the proposed rule overbroad and vague.^[xlviii] In the decision, the Court compared cases from Pennsylvania and Colorado whose versions of 8.4(g) were challenged – Pennsylvania’s was found to be unconstitutional but Colorado’s was upheld as not violating the constitution.^[xlix] The Idaho Supreme Court wrote that Idaho’s proposed rule was closer to Pennsylvania’s than Colorado’s and concluded that while they were “reluctant to reject the Bar’s efforts to rein in unlawful harassment or discrimination,” they declined to adopt it “as it is currently written.”^[l]

Pros and Cons of ABA Model Rule 8.4(g)

Before and since its adoption by the ABA, Rule 8.4(g) has faced controversy.

The stated purpose of Rule 8.4(g) is to explicitly address discrimination and harassment in the practice of law. Arguments for adoption of the rule are that it promotes professionalism, inclusivity, and ethical responsibility by prohibiting discrimination and harassment, fostering an environment of respect, reflecting changing societal norms, and enhancing public confidence in the legal profession.

On the other hand, criticism is that it may violate lawyers’ First Amendment free speech rights, especially in relation to their religious beliefs or political views and have a chilling effect on expression. It has also been criticized as being unnecessary, having unintended consequences, being in conflict with advocacy roles, its potential for misuse, and being difficult to enforce. The rule has also been challenged in court as being unconstitutionally vague and overbroad, and unconstitutional.

The Future of ABA Model Rule 8.4(g)

In recent years, a handful of additional states have adopted a version of Model Rule 8.4(g) including Alaska, Connecticut, and Colorado.^[li] More than a dozen states have now adopted a version of 8.4(g) and several more states address discrimination and/or harassment on protected classes elsewhere in their rules; another handful, like Idaho, address bias, and/or prejudice based on protected classes in their rules.^[lii] Other states are still considering adding the Model Rule 8.4(g) prohibitions to their rules.^[liii]

As of now, Idaho remains one of still only a handful of states that have expressly declined to adopt some version of Model Rule 8.4(g), along with Arizona, Pennsylvania, and Tennessee. Those states, like Idaho, may still consider some version of the rule yet.

While Idaho has yet to adopt some version of the rule, the Idaho Supreme Court’s encouragement to continue to narrow and refine the rule means that the IRPC may yet include anti-discrimination and anti-harassment provisions.

Texie C. Montoya is an associate general counsel at Boise State University where she has worked for 11 years. She is an executive committee member of the Professionalism & Ethics Section and also of the Government & Public Sector Lawyers Section, the treasurer for Attorneys for Civic Education, and a member of Idaho Women Lawyers.

^[i] MPRC.  Like all model rules, Rule 8.4(g) is not binding on lawyers unless or until it is adopted by their jurisdiction’s state bar or supreme court or in some cases their legislature (where that body regulates the legal profession).

^[ii] https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/.

^[iii] Id.

^[iv] Model Rules of Prof’l Conduct (hereafter “MRPC”) Preamble & Scope, §21 (2023).

^[v] Idaho Rules of Prof’l Conduct (hereafter “IRPC”) intro paragraph.

^[vi] https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules/.

^[vii] IRPC intro paragraph.

^[viii] IRPC Preamble and Scope.

^[ix] IRPC intro paragraph.

^[x] IRPC Scope §14.

^[xi] IRPC intro paragraph.

^[xii] Kristine A. Kubes, Cara D. Davis, and Mary E. Schwind, The Evolution of Model Rule 8.4 (g):  Working to Eliminate Bias, Discrimination, and Harassment in the Practice of Law, Under Construction. (Spring 2019).

^[xiii] Id.

^[xiv] Id.

^[xv] Id.

^[xvi] Id.

^[xvii] Cynthia Thomas, ABA Goal III Entities, Law Practice Today. (2015).

^[xviii] Dennis A. Rendleman, ABA Model Rule 8.4(g): Then and Now, The Public Lawyer. (Winter 2023).

^[xix] Id.

^[xx] Id.

^[xxi] Id.

^[xxii] ABA Journal October 1 2017.

^[xxiii] Id.

^[xxiv] ABA Formal Opinion 493 at aba-formal-opinion-493.pdf (americanbar.org).

^[xxv] Id.

^[xxvi] Id.

^[xxvii] Id.

^[xxviii] Id.

^[xxix] Kubes et al., The Evolution of Model Rule 8.4 (g), see chart_adopt_8_4_g.pdf (americanbar.org).

^[xxx] Tex. Att’y Gen. KP-0123, 2016 WL7433186 (Dec. 20, 2016).

^[xxxi] Id.

^[xxxii] Order, In re Proposed Amendments to Rule 8.4 of the Rules of Professional Conduct (S.C. June 20, 2017) (No. 2017-000498), https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2017-06-20-01.

^[xxxiii] Josh Blackman, ABA Model Rule 8.4(g) in the States, 68 Cath. U. L. Rev. 629 (Fall 2019).

^[xxxiv] Id.

^[xxxv] Vt. R. Prof. Cond. 8.4 (2023). Reporter’s Notes-2017 Amendment.

^[xxxvi] Id.

^[xxxvii] Id.

^[xxxviii] Kubes et al., The Evolution of Model Rule 8.4 (g).

^[xxxix] chart_adopt_8_4_g.pdf (americanbar.org).

^[xl] Yvonne Dunbar, Proposed Rule 8.4(g): Consideration, Drafting, and Commitment, 60

ADVOCATE 27 (2017); See Resolution-re-Proposed-Rule-8.4-Amendment.pdf (idaho.gov).

^[xli] Id.

^[xlii] Diane K. Minnich, Executive Director’s Report, 61 ADVOCATE 17 (2018).

^[xliii] Id.

^[xliv] Catherine A. Freeman , Gregory B. LeDonne, Jodi A. Nafzger & Cathy R. Silak, The Impact of Discrimination, Harassment, and Bullying on Lawyers in Idaho, 64 ADVOCATE 30 (2021).

^[xlv] Id.

^[xlvi] Resolution 21-01 – Amendment to Idaho Rule of Professional Conduct (I.R.C.P.) 8.4 at 1, available at https://isb.idaho.gov/wp-content/uploads/Resolution-re-Proposed-Rule-8.4-Amendment.pdf.

^[xlvii] https://isb.idaho.gov/wp-content/uploads/Proposed-Changes-to-Idaho-Rule-of-Professional-Conduct-for-Committee.pdf.

^[xlviii] In Re Idaho State Bar Resolution 21-01 (Jan. 20, 2023).

^[xlix] Id.

^[l] Id.

^[li] https://courts.alaska.gov/rules/docs/prof.pdf,  https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf, In re Abrams, 488 P.3d 1043, 1050 (Colo. 2021).

^[lii] https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8-4.pdf.

^[liii]  Rendleman, see fn X.

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