The notice also explains the meaning of harassment and discrimination. Harassment “refers to aggressively invasive, pressured or implicit behaviour.” Discrimination includes “harmful verbal or physical behaviour that shows prejudice or prejudice towards others.” “My own view is that the rule is useful for symbolic effect,” says Deborah Rhode, a professor at Stanford Law School. “I don`t expect it to be enforced in tight cases, given the legitimate First Amendment issues that any speech ban raises.” (c) engage in conduct that involves dishonesty, fraud, deception or misrepresentation; However, a lawyer who is an associate professor for a law school would violate section 8.4(g) by making comments of a sexual nature to students. A lawyer would also violate section 8.4(g) by making discriminatory remarks about Muslims to another lawyer during a planning session for a new employee orientation program. (g) engage in conduct or communications related to legal practice that the lawyer knows or ought reasonably to know is harassment or discrimination based on race, sex, religion, national origin, ethnic origin, disability, age, sexual orientation or gender identity. When the Maine Rules of Professional Conduct were adopted, they were drafted or amended along with the Maine Bar Rules to indicate that ethical violations could be identified and that disciplinary action could be taken based on the violation of either set of rules. This amendment to Rule 8.4, recommended by the Professional Liability Advisory Committee, corrects an oversight in the original rules and clarifies that lawyers are subject to disciplinary action if they violate or attempt to violate the professional rules or the Maine Lawyers` Code, or if they knowingly assist or induce another person to do so, or do so through the actions of another. for example, when they request or order a representative to do so on behalf of the lawyer. However, paragraph (a) does not prohibit a lawyer from advising a client on measures to which he is legally entitled.
“I also wonder, when I read the statement, what kind of offensive statements a lawyer can make at a lawyers` meeting without breaking the rule,” she says. “The statement provides an example of the type of statement that might be acceptable, but it`s really hard to see where the committee draws the line. “The statement correctly identifies important First Amendment interests that the rule may include,” said Robert N. Weiner, a Washington D.C.-based attorney. “As mentioned earlier, Supreme Court decisions under the First Amendment have become increasingly extensive. To survive First Amendment scrutiny based on evolving norms, the rule must be based on established jurisprudence on conduct that constitutes discrimination and harassment. The opinion concludes by emphasizing the importance of the rule and its application: “The application of Rule 8.4(g) is therefore crucial to maintaining public confidence in the impartiality of the legal system and its confidence in the legal professions as a whole.” Additional Resources CLS has developed resources to help lawyers explain issues related to Model Rule 8.4(g). We recommend the following resources if you continue to study this issue: ABA Journal Article, October 2017 The Christian Lawyer Article The Evolution of the New ABA Model Rule 8.4(g) Comparison of State Black-Letter Rules to Model Rule 8.4(g Expressioning Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession by Michael McGinniss According to Opinion 493, The rule must be assessed on the basis of a measure of an objectively reasonable nature and applies to conduct that the lawyer knows or ought reasonably to know constitutes harassment or discrimination. Only behavior that is harmful is a reason for discipline.
For example, Rule 8.2(a), which prohibits false or reckless disregard of the truth against judges or judicial candidates, has survived constitutional challenges, as has Rule 8.4(d), which prohibits conduct that “interferes with the administration of justice.” “Rule 8.4(g), as drafted, is extremely broad,” says Leslie C. Levin, a law professor and ethics expert at the University of Connecticut. “Formal Notice 493 helps explain the limitations of the rule in some respects.” Some States have already publicly proposed the adoption of ABA Model Rule 8.4(g). CLS submitted a comment letter against the adoption of ABA Model Rule 8.4(g) in any State where CLS was aware of an open comment period. Read CLS Executive Director David Nammo`s comments (in order of last submission): Conduct can violate the rule, even if it is not serious or pervasive, a traditional requirement for determining discrimination under Title VII of sexual harassment. For a more in-depth discussion of the ABA Model Rule 8.4(g), see the Federalist Society`s debate between Professor Volokh and Rob Weiner.  Legitimate advocacy does not violate paragraph (d). However, a lawyer who knowingly expresses harm or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socio-economic status through speech or conduct in representing a client is in violation of subparagraph (d) if such acts are prejudicial to the administration of justice.
Notwithstanding the foregoing, a trial judge who finds that compelling challenges have been brought on a discriminatory basis does not in itself constitute a violation of this rule. While some question the possible application of Rule 8.4(g) to protected freedom of expression, Weiner says they miss the point. .