1. Four Recommended Edits to ABA Model Rule 8.4(g)
Professor Myles Lynk
Sandra Day O’Connor College of Law
Arizona State University
Phoenix, Arizona

2. Technical Edits to Model Rule 8.4(g)
These edits clarify the rule.
They do not change its meaning.

3. 1. A technical change:  In the second sentence in the Rule itself, delete the word “accept.”  
The word is not necessary.  It’s deletion does not change the meaning of the sentence. 
The sentence refers to Model Rule 1.16.  The word “accept” does not appear in MR 1.16. 
                                   
 Having the word “accept” in the sentence implies that the rule is telling lawyers when they must accept a client. It does not.      
Because lawyers are in the business of accepting representations of clients, MR 1.16 recognizes that the issue for ethics purposes is telling lawyers when they must do the opposite; when they “must” decline or withdraw from a representation and when they “may” withdraw from one.  Thus, Model Rule 1.16 necessarily defines when a lawyer is ethically required to decline or withdraw from a representation and when a lawyer is ethically permitted to withdraw from a representation.  We are concerned with whether a lawyer can justify a refusal to represent a client under either 1.16(a) or 1.16(b).  That actually is a high burden for a lawyer to meet when the client wants the representation, and in any event we cover that by referring in the sentence of a lawyer’s ability to decline or withdraw from a representation.  (And in Comment [5] we note that a lawyer should not decline an appointment under MR 6.2 except for “good cause.”) Thus, the word “accept” should come out.     

4. (i) the word, "or" should be deleted;
2. A grammatical correction to the third sentence in the Rule.  Specifically:  
(i)   the word, "or" should be deleted;
(ii)  the words, "and legitimate," should be added before the word “advocacy”; and 
(iii)   a comma should be inserted after the word “advocacy”.   
Thus, as edited, the sentence would read:  “This paragraph does not preclude legitimate advice and legitimate advocacy, consistent with these rules.“   
These are grammatical changes.  It has been pointed out to me by various and serious readers that without these changes, the sentence could properly be read by a respondent’s counsel to mean that "legitimate advice" on the one hand is one standard, and "advocacy subject to these rules" is a different standard, because the two phrases are separated by the word "or," and there is no indication (as there would be if there was a comma), that, “subject to these rules,” is meant to apply to both “legitimate advice” and, “legitimate advocacy.”   Obviously this was not our intent nor was this how the proposal was presented to the House.  The word “legitimate,” which now appears only before the word “advice,” was intended to also modify the word, “advocacy.” Similarly, the phrase, "consistent with these rules" was intended to modify both legitimate advice and legitimate advocacy.  Grammatically the sentence should refer to both legitimate advice “and” legitimate advocacy, not to either legitimate advice “or” legitimate advocacy.  These edits would better implement our intent.  I strongly recommend this change.    

5. 3. In Comment [3], delete the following sentence:  “Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  
Replace it with the following sentence: “Discrimination proscribed by paragraph (g) includes the adverse treatment of a person because he or she is a member of one or more of the groups identified in the rule, through conduct related to the practice of law.” 
Why this change? The current sentence can be read as overbroad -- (e.g., the word “others” is not limited to the groups listed in the rule itself; the sentence does not specify that the conduct must be “related to the practice of law.”) -- and therefore ambiguous. 
The reference to “manifests bias or prejudice” harkens back to the old Comment [3].   The new rule is supposed to address the more focused concepts of harassment and discrimination.  Thus, the replacement sentence is more specifically drawn and more clearly focused to illustrate the goals and purposes of the rule itself.   For people coming to this afresh, the current sentence may appear to enlarge the scope of the rule beyond what we intended.  For example, the sentence does not say that the discrimination proscribed by the rule is limited to conduct "related to the practice of law," or that it is limited to the groups identified in the rule.  And it defines discrimination not by the effect of the perpetrator's conduct on the victim, but on the state of mind of the perpetrator.  That is what we were trying to get away from.  This edit would address these issues.      

6. The words “responsibility” and “obligation” are not synonyms.
4. Another technical edit:  In the fourth sentence in Comment [5] delete the words “obligations” and “obligation” and replace both words with the word, “responsibility.” 
This Comment is referring to a lawyer’s duties under Model Rules 6.1 and 6.2.  Neither rule uses the word “obligation.” 
The words “responsibility” and “obligation” are not synonyms.
Rule 6.1 refers to a lawyer’s “responsibility” to undertake pro bono representations; it is not an obligation.  It also is appropriate to refer to a lawyer’s duty under Rule 6.2 to accept court appointments except for good cause as a “responsibility,” not an obligation.  We correct this reference by changing the words “obligation” and "obligations," to, “responsibility.”   

7.  The edited portion of the Rule and Comments with these edits underlined
and struck through: 

8. Rule 8.4: Misconduct
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 This paragraph does not preclude legitimate advice or and legitimate advocacy, consistent with these Rules.

9. COMMENTS
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Discrimination proscribed by the rule includes the adverse treatment of a person bercause he or she is a member of one or more of the groups identified in the rule, through conduct related to the practice of law. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

10. [5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional responsibility obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their responsibility obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

11. Discussion