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.

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^[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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 [LE1]Place in breakout box

 [LE2]Pull quote

By Danelle C. Forseth & Melissa Luna

In 2019, the American Bar Association (“ABA”) published the report Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice by Roberta D. Liebenberg and Stephanie A. Scharf.[i] The report was undertaken as part of the ABA’s Presidential Initiative on Achieving Long-Term Careers for Women in Law which explored why big firm women lawyers “are leaving the legal profession when they are in the prime of their careers and should be enjoying the most success.”[ii] The researchers surveyed managing partners and female and male attorneys who were in private practice at National Law Journal 500 law firms for at least 15 years. Seventy percent of respondents were women and 30% of respondents were men.[iii]

Among the survey’s many results were that women report being four to eight times more likely than men to be overlooked for advancement, be denied a salary increase or bonus, be treated as a token representative for diversity, lack access to business development opportunities, be perceived as less committed to her career, and lack access to sponsors.[iv] Additional findings indicate that 21% of women are somewhat or extremely dissatisfied with their job and only 53% of women were satisfied with the leadership of their firm. Among the top reasons women leave the legal profession were caretaking commitments, level of stress at work, and work/life balance.[v]

Melissa Luna and Danelle Forseth proposed writing this article because their experience of practicing law in a rural community has been opposite of the findings of the women attorneys surveyed in the Walking Out the Door report. Not only is there challenging legal work to be performed but they have found building a practice in Idaho’s rural counties is satisfying and permits them to balance their personal responsibilities with their work.

Shortage of Rural Idaho Attorneys

The Professionalism & Ethics Section of the Idaho State Bar (“ISB”) partnered with the Idaho Policy Institute and Master of Public Administration Capstone Class at Boise State University to conduct research about the Idaho State Bar. This research culminated in the publication of Climate of the Legal Profession in Idaho 2020.[vi] It was reported that 38% of ISB members are female and 62% are male. The authors of that publication reported women experience discrimination, harassment, and bullying in the legal profession at significantly higher rates than men.[vii]

Idaho has a total of 5,474 active attorneys of which 4,005 reside or have an office in-state.[viii] Idaho’s Fourth Judicial District represents 2,226 of these active and in-state attorneys, leaving 1,779 attorneys to serve the remainder of Idaho. In comparison, Idaho’s Sixth Judicial District claims 189 active, in-state attorneys. In 2020, the ABA reported “two-thirds of [Idaho] counties (29 of 44) have less than one lawyer per 1,000 residents, including three counties with no lawyers at all and two counties with only one lawyer.”[ix] For every 1,000 residents, Idaho has 2.2 attorneys.[x] The number of attorneys available to enter into attorney-client relationships with local residents shrinks once prosecutors, city attorneys, and county attorneys are subtracted from available attorneys. Further, the “graying of the bar,” or many attorneys who are older and nearing retirement or retiring within the ISB, adds to the scarcity of rural attorneys.[xi]

Opportunity in Idaho’s Rural Counties

Danelle Forseth joined long-time Moscow attorney Ronald Landeck in 2011 full-time after having worked part-time for several years to care for two children until they reached school-age. Melissa Luna joined the law firm in 2015 after working as an in-house civil rights investigator for colleges and universities. She landed in Moscow when her spouse took a position in the region. Danelle recalls:

“Melissa and I graduated from law school together. We had been chatting about job opportunities in Idaho when she said she would be moving to Moscow. I urged her to meet with Ron and me and consider coming to work with us as we had a tremendous need for another attorney to serve our clients. In my experience, there is never a shortage of people or businesses in need of legal assistance in our community.”

Another rural attorney, Susan Wilson, who has mostly practiced as a solo practitioner, also enjoys working in small towns in Idaho. She states:

“I have more than enough clients to support my lifestyle. I think attorneys in small towns will always be busy – just the nature of having a general practice and conflicts of interest with other attorneys – the whole supply and demand model is very much applicable to attorneys and just like any other market restriction, we have conflicts of interests that force involving other counsel. I’m not even talking about litigation – even transactional attorneys, estate planning attorneys, probates, etc. Every area of law.”

In the authors’ practices, there are enough billable hours to cover expenses and pay themselves salaries above the annual mean wage earned by all attorneys in Idaho.[xii] In fact, at different times of the year, they must decline cases to keep their caseloads at a manageable level. In addition, author Melissa has also qualified as a Parenting Coordinator under the Family Law Rules of Procedure and works with parents to make decisions after the entry of a custody decree.

Another local attorney, solo practitioner Jennifer Ewers, offers other types of legal services to the community, such as mediation services. She comments, “As a mediator, I hope I am helping the community by providing a service that allows parties to resolve family law and other disputes in a less contentious and costly forum than court, and that leaves the outcome of the process in their hands.”

In Latah County, Danelle and Melissa are aware of at least three long-time attorneys who have retired or transitioned to “of counsel” status in recent years and have handed the reins over to younger attorneys after a period of time practicing together. This includes their own firm. For the younger attorney, the typical gains are mentorship and a book of business. With the number of Baby Boomer attorneys who are, or who will soon reach, retirement age, they foresee many opportunities for such succession arrangements.

Connection with Community

In a rural community, the authors routinely see how service to residents makes a difference. Danelle explains, “We are invested in our clients’ success; we rely upon, frequent, and enjoy supporting our local business clients on a personal level. By purchasing a book or coffee or enjoying a family meal out at one of our many great restaurants we support our local businesses that contribute to our quality of life.” Melissa agrees and states:

“I feel fortunate to encounter former clients by chance at local events, sometimes at their workplace, or even as they stroll by my home as I am gardening. When we can connect after the high stress of litigation, and I see them or their children doing well, I am reminded of the importance of being a lawyer. Our guidance and compassion at the worst of times is part of a longer experience of adjusting to a different version of their life, often one that is more positive.”

Susan Wilson also sees the value in her services to rural clients. She states, “Just being able to provide resources is hugely valuable to those in a small town; so many of my clients come in just not knowing the first thing about what they need to do, and it doesn’t take much to point them in the right direction, give them peace of mind, or put them at ease.”

Practice in a small town allows many attorneys to provide alternative service arrangements to our clients. “My small-town practice helps me be able to make house calls more so than I would ever be able to do in a larger city.  Many of my clients aren’t able to come downtown or climb my stairs – so I often go to them,” notes Susan Wilson. Recently, Danelle arranged to have two witnesses accompany her to a client’s residence to execute a will because the client could not leave a home-bound, incapacitated person.

Mentorship and Collegiality

Danelle feels extremely fortunate to have had several mentors after joining the local legal community. She was a staff-attorney for District Judge, now Justice John Stegner, and worked on a contract-attorney basis with attorney John Norton before joining Ronald Landeck in his legal practice. Danelle says that the experience of receiving the guidance and support of these individuals was invaluable as she began a local legal practice.

Attorney Deb McCormick was admitted to the bar in 2005 and is a solo practitioner. She currently has a public defender contract which includes representing individuals in criminal cases, termination of parental rights cases, and guardianship. She observes about the civility in her rural practice:

“Even the attorneys who are regularly your adversaries in the courtroom are your friends outside the courtroom.  It is a very supportive environment.  But it also keeps you on your toes! If you are a slacker, everyone is going to know, so it keeps you doing your best. Also unique to small towns is that the judges really get to know the defendants that they see often. Most of my clients believe the judges really care about their well-being, which they do!”

Melissa shares her positive experience as a person of color working in a rural legal community. She states:

“As a person of Mexican-mixed race ancestry, I read the research about the experiences of people of color in the legal industry, and it is often disheartening. As a member of a small firm in which we work collaboratively, and know each other well, I feel respected and that opportunities are open to me. The size of our legal community, including members of my own firm, judges, court clerks, and local attorneys, lends itself to developing positive and collegial relationships; we get to know one another’s talents and stories.”

Quality of Life

Prior to moving to Moscow, Danelle practiced law in Portland, Oregon. The daily commute from home to daycare then to the office was 45 minutes one-way. Practicing law in a small town has provided flexibility as well as a better work-life balance for her. She states, “I can walk up the hill to the high school in a few minutes, watch a student presentation, and be back in the office without losing hours to a commute.” Additionally, because they are in control of their own caseload, Danelle can take the time to attend her kids’ soccer games or track meets. Melissa and Danelle both are able to schedule in fitness routines as well because they control their time, and their workout facilities are within a mile of their office; Danelle leaves the office early for weight training and Melissa comes in late after morning pickleball.

Most of their cases are in Latah County, which has 89 active, in-state attorneys, but now that courts are continuing the use of Zoom for pretrial hearings, they can take more cases in Nez Perce, Idaho, and Clearwater counties.

And, unsurprisingly, they are satisfied with the leadership of their firm because they are the leaders. In fact, every woman attorney quoted in this article owns her firm.

Limitations

There are certainly difficulties with legal practice in rural counties. For a lawyer who does not join a community by working in an established firm, building a business has its challenges. Jennifer Ewers shares her experience:

“Early on in my solo practice, it was difficult to balance work and personal life because my focus had to be on generating clients and income as I built my practice. I think my kids suffered a bit from my unavailability during that practice-building phase. After establishing a consistent client base, my solo practice has very much allowed me to set my own hours, subject to court hearings and other scheduling out of my control.”

And there is no question there are fewer professional services available for clients that may be needed in relation to a case or general welfare, such as counseling or supervised visitation. Attorney Deb McCormick advises, “Small towns have fewer social resources. As a public defender, many of my clients are in need of resources that just don’t exist in Latah County or are in such short supply that the waiting lists are very long.” Local attorneys are not always able to help their clients access these services. Melissa finds that the collegial relationships among local attorneys, because of the frequency of contact, as well as three years of Zoom hearings, has resulted in an openness to alternative arrangements.

For example, if a client can travel for a psychological evaluation, the court and colleagues are open to testimony from a different location as permitted by court rules. Recently, Melissa and another attorney stipulated the testimony of expert and lay witnesses could occur by Zoom. Local attorneys know and appreciate that we all face barriers because of our location so cooperation is our typical starting point.

Lastly, the authors are not suggesting that they have not encountered sexism in their work. In the Walking Out the Door report, 82% of women attorneys reported they have been mistaken for a lower-level employee whereas 0% of men had that experience.[xiii] Danelle was mistaken as an assistant by older male attorneys early on when she accompanied an older male attorney to meetings. Melissa has been mistaken for an assistant by a few walk-in prospective clients.

Conclusion

Practicing law in one of Idaho’s small communities can afford a legal practitioner the opportunity to create a legal practice that more easily permits commitments outside of work, including personal responsibilities to one’s family and one’s self. Building a practice provides the opportunity to control caseload and time spent in the office. More importantly, working in counties with fewer people draws you into the life of the community in many satisfying and unexpected ways. Attorneys at all career phases, whether starting out or an experienced attorney wanting a change, should consider a practice in one of Idaho’s small towns.

Finding new associates is a constant discussion by attorneys in Latah County and, likely, around the state. Anyone wishing to explore life and practice in Idaho’s rural counties should reach out to members of the local bar association for insight into the particular needs of the region, especially older attorneys who may be interested in developing a succession plan. University of Idaho law students can secure scholarship funds to support internship, externship, or pro bono service in rural communities through the Idaho Heritage Project and use that opportunity as a great way to network in a rural community.[xiv]

The authors and their colleagues quoted in this article have found legal practice in rural Idaho to be satisfying, supportive, and favorable to building work lives that make room for their personal responsibilities and well-being. They hope their experiences inspire others to join them in Idaho’s rural communities.

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[i] Roberta D. Liebenberg and Stephanie A. Scharf, Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice, American Bar Association, available at: https://www.americanbar.org/content/dam/aba/administrative/women/walkoutdoor_online_042320.pdf.

[ii] Walking Out the Door, at i.

[iii] Id. at 3.

[iv] Id. at 3-8.

[v] Id. at 12.

[vi] Climate of the Legal Profession in Idaho 2020, Boise State University School of Public Service, available at: https://isb.idaho.gov/wp-content/uploads/Climate-of-the-Legal-Profession-in-Idaho-2020.pdf.  

[vii] Climate of the Legal Profession in Idaho 2020, at 15.

[viii] Membership Count and Statuses, Idaho State Bar, available at: https://isb.idaho.gov/licensing-mcle/membership-count-statuses/ (last accessed 8/29/2023).

[ix] ABA Profile of the Legal Profession 2020, American Bar Association, at 2 and 5, available at: https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf. The counties with one attorney are Boise, Butte, and Minidoka. The county with zero attorneys is Camas County. 

[x] ABA Profile of the Legal Profession 2020 at 3.

[xi] Beskin, K.V. and Pruitt, L. R., A Survey of Policy Responses to the Rural Attorney Shortage in the United States, UC Davis Legal Studies Research Paper Series (May 2021), available at: https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3854187_code366600.pdf.

[xii] May 2022 State Occupational Employment and Wage Estimates – Idaho, U.S. Bureau of Labor Statistics, available at: https://www.bls.gov/oes/current/oes_id.htm#23-0000 (last accessed 8/29/2023). The data reports Idaho lawyers are paid an annual mean wage of $96,810. 

[xiii] Walking Out the Door, at 7.

[xiv] Idaho Heritage Project, University of Idaho, available at: https://www.uidaho.edu/law/academics/experiential-learning/idaho-heritage-project.   

By Mark J. Fucile

“Once discovery began, several of the parties’ lawyers quickly devolved to the kind of conduct that rightly gives the legal profession a bad name.” – Britton v. Dallas Airmotive, Inc. [i]

Depositions lie at the heart of most civil cases and in rare instances some criminal cases.  They can often “make” – or “break” – a case.  Even before the rise of “remote” depositions during the COVID-19 pandemic, “speaking” objections and related lawyer misconduct during depositions occasionally crossed the sometimes-indistinct line between legitimate advocacy and improper coaching.  A column in these pages by the then-president of the Idaho State Bar in 2015, for example, warned of these tactics.[ii]  Anecdotal evidence suggests that the widespread adoption of remote depositions in the wake of the pandemic has not improved this dynamic with well-publicized reports of lawyers being sanctioned for secretly communicating with their clients during depositions.[iii]

In this article, we’ll look at the boundary between legitimate advocacy and improper coaching in three respects.  First, we’ll survey the rules involved.  Second, we’ll note the principal risks to lawyers who cross that line.  Third, we’ll discuss both informal and formal remedies available to address improper deposition coaching.

Before we dive too deeply into this topic, three caveats are in order.

First, we’ll focus on conduct occurring during a deposition.  As a general proposition, there is nothing wrong with thoroughly preparing a witness to give truthful testimony before a deposition.[iv]

Second, we’ll focus on deposition objections and related coaching rather than other forms of bad behavior occurring during depositions.[v]

Third, although similar issues can arise at trial, judicial control of the courtroom makes conduct of this kind less frequent at trials than during depositions.[vi]  With these boundaries in place around this analysis, let’s look more deeply into the rules.

Rules

The rules governing deposition conduct – including improper coaching – are a blend of procedural and professional regulations.

Idaho Rules of Civil Procedure 30(d)(1) and (2) concisely frame the procedural limits:

• An objection must be stated concisely in a nonargumentative and nonsuggestive manner.  A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(4).[vii]

• Counsel or any other person present during the deposition must not impede, delay, or frustrate the fair examination of the deponent.

Idaho’s rules are patterned on a corresponding provision in Federal Rule of Civil Procedure 30(c)(2).  Idaho’s rules are also similar to those in neighboring states.[viii]

Idaho Rules of Professional Conduct 3.4(a) and (c), in turn, frame the primary professional rule considerations:

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; […]

(c) knowingly disobey an obligation under the rules of a tribunal[.]

Improper coaching and similar misconduct during a deposition may also trigger RPC 8.4(d), which prohibits “conduct that is prejudicial to the administration of justice[.]” All three Idaho provisions are based on their ABA Model Rule counterparts.[ix]

A deponent who has been coached to offer specific answers designed to shade or hide the truth is likely violating IRPC 3.4(a).  Coaching by the attorney also calls into question compliance with Idaho Rule of Civil Procedure 30(d)(2) because it impedes the “fair examination” of the deponent.

Risks

Improper coaching can result in both court-imposed sanctions and regulatory discipline.  Examples of sanctions as explained in the following could include monetary penalties, removal of pro hac admission, disqualification of the attorney, or even outright dismissal of a claim or complaint.  Whatever small advantage may be contemplated by “coaching” is heavily outweighed by the lawyer’s obligation under the rules as well as the risk of costly sanctions.

Idaho Rule of Civil Procedure 30(d)(3) authorizes a trial court to impose an “appropriate sanction” “on a person who impedes, delays, or frustrates the fair examination of the deponent.”  The broad spectrum of sanctions available under Idaho Rule of Civil Procedure 37(b) – ranging from monetary penalties to dismissal – is incorporated by reference into Rule 30(d)(3).  Sanctions are also available in federal proceedings under Federal Rule of Civil Procedure 30(d)(2).  Because a court may consider sanctions against both the offending lawyer and the lawyer’s client, potentially disqualifying conflicts may result as well.[x]

Lawyers have been disciplined for violations of variants of Idaho Rules of Professional Conduct 3.4 and 8.4 for improper deposition coaching.[xi]  Revocation of pro hac vice admission by the court concerned is also an available remedy.[xii]

Deposition misconduct that amounts to improper coaching varies

“Speaking” objections – where the defending lawyer expands on objections to impermissibly coach the witness toward a desired answer – have long been a staple of this genre of cases.[xiii]  For example: “Objection.  Mr. Smith has already testified that he doesn’t know whether the light was green or red and your question asks him to speculate.”  Repetitive “form” objections designed to impede the questioner during depositions have also been criticized by courts as a variant of impermissible coaching.[xiv]  Repeatedly rephrasing questions to signal the desired answer to the witness has also been held to constitute impermissible coaching.[xv]  Repeatedly taking the witness out of the room while a question is pending is a more blatant form of impermissible coaching.[xvi]

These older forms of impermissible coaching are now supplemented by technology-enabled methods.  Whispering desired answers off-camera during remote video depositions is no different than more traditional impermissible coaching.[xvii]  Texting or “chatting” suggested answers to a witness during a remote deposition is similarly impermissible coaching.[xviii]  It is important to note that in a remote deposition, the microphones are often very sensitive to noise, it is easy to see a witness’ attention being redirected, and no one can text surreptitiously.  If you need a further word of caution, these efforts are often easily identified, and always recorded.

While “line drawing” in this area is inherently indistinct, the caselaw collectively suggests that lawyers are at risk of sanctions or discipline either when objections or similar conduct are repeated to the point of impeding the opposing party’s right to conduct the deposition or is a single egregious instance such as whispering answers off-camera during a remote deposition.[xix]

Remedies

Idaho Rule of Civil Procedure 37(a)(4) addresses “evasive” and “incomplete” answers.  Federal Rule of Civil Procedure 37(a)(3) does the same for federal proceedings.  Both are framed as motions to compel.  As noted earlier, sanctions can range from monetary costs to broader remedies such as striking claims or defenses.  Idaho Rule of Civil Procedure 30(d)(2), in turn, expressly prohibits counsel from impeding or otherwise frustrating “the fair examination of the deponent.”  Federal Rule of Civil Procedure 30(d)(3) proscribes tactics during a deposition that are done in bad faith, or which “oppress” a party.  Both incorporate the sanctions available under the respective versions of Rule 37.[xx]  Depending on the circumstances, these rules should be read in conjunction with Idaho Rule of Civil Procedure 26(c) governing protective orders and its federal counterpart, Federal Rule of Civil Procedure 26(c).

Although these formal paths may provide remedies for the worst situations, they have inherent practical limitations.[xxi]  Courts, for example, have commented on the difficulty of assessing asserted lawyer misconduct on the “cold record” of a deposition transcript alone.[xxii]  Similarly, even a recording may need to be “enhanced” by a technical professional to reveal impermissible whispered instructions during a remote deposition.[xxiii]

Practical alternatives short of seeking formal relief will vary with the personalities and circumstances involved.  Assuming that a simple discussion with opposing counsel does not address the situation,[xxiv] offering a standing objection (or stipulating that all objections other than to privilege are reserved until the deposition is offered) may provide a practical solution by taking away the reason for defending lawyer to interject serial speaking objections.[xxv]  Although adding to the expense, noticing a deposition by video can sometimes discourage “bad behavior” by opposing counsel because, if necessary, it can be shown to the court concerned.[xxvi]  This can be especially useful if conduct such as whispering answers is involved that would not show-up on a paper transcript.

Summing Up

The poignant passage from Britton quoted at the outset was coupled with a sage observation by the court: “‘[A]dvocacy which is both civil and professional is by far the most effective.’”[xxvii]  Well prepared witnesses don’t need to be coached – whether through speaking objections or whispered suggestions – during their depositions.  If opposing counsel, nonetheless, engages in impermissible coaching, both informal approaches and, if needed, formal remedies are available to address these situations.  As identified within this article, attorneys can both prepare their witnesses to not need coaching and identify the telltale signs of coaching and then preserve the record as necessary to adequately protect their clients and their cases.

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[i] 2009 WL 10677843 at *1 (D. Idaho July 2, 2009) (unpublished).

[ii] Tim Gresback, Deposition Bullies, Witness Coaching and Discovery Abuse, 58 No. 11-12 Idaho State Bar Advocate 14 (Nov./Dec. 2015).

[iii] See, e.g., Mike Scarcella, Masked Lawyer Who Whispered to Client at Zoom Deposition Urges No Further Discipline, Reuters, Nov. 29, 2021 (available at www.reuters.com).

[iv] See, e.g., Idaho R. Civ. P. 30(b)(6) (duty to designate corporate representative); Fed. R. Civ. P. 30(b)(6) (same).

[v] See also Idaho State Bar Standards for Civility in Professional Conduct; U.S. District Court L. Civ. R. 83.8 (fairness and civility).

[vi] See generally State v. Severson, 147 Idaho 694, 718, 215 P.3d 414 (2009) (discussing “speaking objections” at trial); Teter v. Deck, 274 P.3d 336, 344-45 (Wash. 2012) (same).

[vii] Idaho R. Civ. P. 30(d)(4) addresses motions to terminate or limit depositions.

[viii] See, e.g., Oregon R. Civ. P. 39D(3); Washington Civ. R. 30(h)(2); Utah R. Civ. P. 30(c)(2).

[ix] See generally ABA Formal Op. 508 (2023) (discussing witness preparation, including improper coaching during depositions).

[x] In re Marriage of Wixom and Wixom, 332 P.3d 1063 (Wash. App. 2014) (disqualifying lawyer for conflict by attempting to shift responsibility for sanctions from lawyer to client).

[xi] See, e.g., Florida Bar v. James, 329 So.3d 108 (Fla. 2021) (lawyer disciplined under Florida versions of ABA Model Rules 3.4(a) and 8.4(d)); Matter of Claridge, Arizona State Bar No. 20-2214, Final Judgment and Order (Jan. 21, 2022) (unpublished) (lawyer disciplined under Arizona versions of ABA Model Rules 3.4(a) and 8.4(d)).

[xii] See Britton v. Dallas Airmotive, Inc., 2009 WL 10677843 at *6 (D. Idaho July 2, 2009) (unpublished) (Britton) (noting the availability of revocation of pro hac vice admission for improper deposition coaching and related misconduct).

[xiii] See, e.g., Britton, supra, 2009 WL 10677843 at *6 n.5 (noting improper speaking objections); Voss v. Voss, 169 Idaho 518, 528, 497 P.3d 1138 (Idaho App. 2021) (same).

[xiv] See, e.g., Britton, supra, 2009 WL 10677843 at *6 (criticizing repeated “form” objections); Teck Metals, Ltd. v. London Market Insurance, 2010 WL 11507595 at *6 (E.D. Wash. Oct. 20, 2010) (unpublished) (same).

[xv] See, e.g., Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 39-40 (D. Mass. 2001) (reframing questions and using extended colloquies to impermissibly coach witness).

[xvi] Id. (also frequently leaving the room with the witness when questions were pending); see also LM Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490, 490-91 (N.D. Ill. 2011) (same).

[xvii] See, e.g., Gladden v. State, Spokane County, Washington Superior Court Case No. 20-2-00806-2, Sanctions Order at 2 (July 8, 2021) (unpublished) (lawyer sanctioned for whispering answers to witness off-camera); Shimkus v. Scranton Quincy Clinic Company, LLC, Lackawana County, Pennsylvania Court of Common Pleas No. 19-cv-3534, Memorandum and Order at 5-6 (Dec. 7, 2020) (unpublished) (same).

[xviii] See, e.g., Florida Bar v. James, supra, 329 So.3d 108 (texting); Matter of Claridge, supra, Arizona State Bar No. 20-2214 (using chat function).

[xix] See, e.g., Britton, supra, 2009 WL 10677843 at *6 (noting that while individual objections standing alone may have been permitted, repetitive “form” objections were impermissibly used to impede the deposition); see also Wachtell v. Capital One Financial Corp., 2006 WL 8446017 at *8-*9 (D. Idaho May 9, 2006) (unpublished) (concluding that objections did not impede deposition).

[xx] See also Idaho R. Civ. P. 30(d)(4) and Fed. R. Civ. P. 30(d)(3) (motions—albeit typically by the deponent—to terminate or limit depositions being conducted in bad faith).

[xxi] A bar complaint against the offending lawyer may be a possibility.  See generally RPC 8.3 (addressing reporting professional misconduct).  Given the timing of regulatory discipline, however, it may not be a practical solution to immediately address conduct in ongoing litigation.

[xxii] See, e.g., Jarvis v. Janney, 2012 WL 13093882 at *2 (E.D. Wash. Mar. 27, 2012) (unpublished) (“The Court is mindful that the written transcript does not provide the Court with the ability to gauge the passage of time, the tone, the inflection, the attitude or demeanor of any particular speaker.”).

[xxiii] See, e.g., Espinoza v. Hector Gabriel Chavarria and VRP Transportation, Inc., 2022 WL 136465 at *4-*5 (W.D. Tex. Jan. 14, 2022) (unpublished) (noting difficulty of discerning alleged coaching during Zoom deposition even with enhanced audio).

[xxiv] Conferral on discovery motions is generally required in both Idaho state and federal courts under, respectively, Idaho R. Civ. P. 37(a)(1) and U.S. District Court L. Civ. R. 37.1.

[xxv] See, e.g., Goodman v. First Unum Life Insurance Company, 2022 WL 2063995 at *1 (W.D. Wash. June 8, 2022) (unpublished) (noting standing objection as informal remedy).

[xxvi] See, e.g., Keenan v. BNSF Ry. Co., 2008 WL 1710100 at *2 (W.D. Wash. Apr. 8, 2008) (unpublished) (noting the court’s review of video to assess whether objections amounted to improper coaching).

[xxvii] Britton, supra, 2009 WL 10677843 at *3 (citation omitted).

By Fonda L. Jovick

Dear Law Foundation Members and Friends,

Thank you for being part of our important work. We appreciate your ongoing commitment to the work of the Idaho Law Foundation.

As you read through the information in this year’s annual review, you will see some of the many things we’ve accomplished. This is a brief snapshot of what the dedicated staff and volunteers of the Idaho Law Foundation have achieved with your donations and volunteer assistance.

I hope you have a sense of pride in knowing that you helped create this success. As we look forward, I urge you to continue to show your support for the Idaho Law Foundation, an organization that does so much for Idaho communities and citizens on our behalf.

Thank you again for all you do for the Idaho Law Foundation and the people of Idaho. It is my privilege to serve as the President of this wonderful organization and I look forward to working with you to help the profession serve the public.

Continuing Legal Education

Enhancing the education and competence of our members

• Increased overall attendance for ILF sponsored CLE programs by 11%.
• Shifted attendance from Online CLE to In-Person CLE, with a growth of 857% from the prior three years.

“As a presenter during the New Attorney Program, I get to connect directly with new lawyers about issues such as depression, anxiety, and alcohol and substance abuse that plague the legal community and what it means to serve those who suffer. It is an honor to be asked to discuss why giving back to our legal community is so vital for a healthy bar.” – Mack Mayo, CLE Volunteer, Attorney at Paine Hamblin

Idaho Volunteer Lawyers Program

Increasing access to civil legal services for low-income Idahoans

• A clinic attorney helped a brave, young woman review her social security disability appeal. She arrived at the clinic feeling desperate and left telling us that she was so grateful for the patience and compassion that the attorney showed her as they prepared for her day in court.
• A senior citizen who had just lost her son and was going through probate was helped by two clinic attorneys collaborating their time and expertise to get her the help that she needed during a time when she was overwhelmed with grief and the task of raising her young granddaughter.
• A homeless man who was struggling to gain financial stability was helped by a clinic attorney who took the time to advocate for him over the phone to an agency that was wrongfully suing him.
• An undocumented family was protected from enduring further violence with the help of clinic attorney who went above and beyond to research international service of family law documents.

“The unmet legal needs in our community far exceed existing resources. Many legal organizations are limited by the types of cases and clients they can help. IVLP is different because they don’t deny services to anyone based on legal issues involved. IVLP attorneys get to help clients with issues from family law to social security benefits to the reduction of criminal charges. I can help a client with on-the-spot advice if the problem is simple, provide the client with a referral, or take on a more significant role. And when I meet with a client who has a legal problem outside my expertise, IVLP gives me access to skilled and knowledgeable mentors who provide me with the information and guidance I need. In addition, IVLP clinics are offered at various locations and days so I can always find a clinic that works with my schedule.” – Shannon R., IVLP Volunteer

Law Related Education

Enhancing public understanding of and respect for the law and our legal system

• Coordinated the Idaho High School Mock Trial Competition for 216 students from 24 teams and six courtroom artists.
• Recruited 138 teachers, judges, attorneys, and other community leaders who donated their time to serve as mock trial coaches, advisors, judges, and competition staff.
• Developed and piloted a seven-part online mock trial training series to help newer coaches and competitors understand the skills necessary to participate in the mock trial competition.
• Awarded the second Mock Trial Civility & Ethics Award, created to highlight the importance of civility and professionalism among teams. The Logos School from Moscow was chosen by the other teams as the recipient of this year’s award.

Caroline Brown, a senior at The Ambrose School and a member of Idaho’s National High School Mock Trial team, was selected as one of 10 Outstanding Student Attorneys at the 2023 national competition. Caroline said she felt honored to have her name called and receive recognition among the nearly 400 other eloquent, talented, and knowledgeable competitors.

Caroline’s coach, Nick Duncan, reported that this is the first time a student from Ambrose has received an Outstanding Attorney Award. “I was not surprised. Caroline has a presence that demands the attention of the judges, jury, and even her competitors. In fact, the presiding judge from one of our trials told me that Caroline was the best attorney in the room, and that she owned the courtroom.”

As Caroline finishes her high school mock trial career and heads off to the University of Texas, she leaves a legacy as a great mock trial competitor that will be remembered. Hon. Jessica Lorello shared that she was pleased to learn that Caroline received the Outstanding Attorney Award. “Having had the privilege of seeing Caroline in action over the past few years and having worked with her in preparing for competition, I know the award was well-deserved. Caroline’s hard work and natural talent made her one of the best attorneys I have seen in mock trial.”

Support the Idaho Law Foundation

The Idaho Law Foundation appreciates the ongoing support of our donors. To contribute to the Law Foundation and our programs, visit our website at idaholawfoundation.org.

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