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| ABA Model Rule 8.4(g) prohibits conduct “that the lawyer knows or reasonably should know is” “harassment or discrimination on the basis of” specifically identifiable attributes, “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The prohibition applies to all “conduct related to the practice of law.” ABA Model Rule 8.4(g) thus applies “in non-litigation matters or at law firm social events or bar association functions” (although “Rule 8.4(g) does not regulate conduct unconnected to the practice of law, as do some other rules of professional conduct”). ABA Model Rule 8.4(g) “prohibits other conduct that is not covered by other law;” and might involve “a single instance of a lawyer” engaging in the prohibited conduct. “[T]he most common violations will likely involve conduct that is intentionally discriminatory or harassing.” “The existence of the requisite harm is assessed using a standard of objective reasonableness.” ABA Model Rule 8.4(g) specifically excludes from its prohibition “[l]egitimate advice or advocacy consistent with [the ABA Model Rules].” The following acts would not violate ABA Model Rule 8.4(g): (1) a First Amendment challenge to “a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities;” (2) a CLE program speaker “express[ing] the view” criticizing “a race-conscious process in admitting African-American students to highly ranked colleges and universities;” (3) a lawyer’s membership in “a religious organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.” The CLE speaker scenario does not violate ABA Model Rule 8.4(g), because “even a controversial [point of view] cannot reasonably be understood as harassment or discrimination contemplated by [ABA Model] Rule 8.4(g)” – and “[t]he fact that others may find a lawyer’s expression of social or political views to be inaccurate, offensive, or upsetting is not the type of ‘harm’ required for a violation.” The following acts would violate ABA Model Rule 8.4(g): (4) an adjunct professor/lawyer “supervising a law student in a law school clinic” making “repeated comments about the student’s appearance and also making unwelcome, nonconsensual physical contact of a sexual nature with the student” (which involves “conduct related to the practice of law,” although the “conduct . . . may not necessarily fall directly within the context of the representation of a client”); (5) law firm lawyers stating during a planning session or “an orientation program for newly-hired associates to familiarize them with firm policies and procedures” stating that lawyers should “never trust a Muslim lawyer” or “represent a Muslim client” (“[b]ecause the remarks were made within the law firm setting, they were ‘related to the practice of law”). In sum, ABA Model Rule 8.4(g) “does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.” (which “must necessarily be judged, in context, from an objectively reasonable perspective”). | 7/15/2020 |
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| Lawyers have a duty under ABA Model Rule 1.1, 1.3, 1.4, 1.13, 8.4 and 1.16 "to inquire further to avoid assisting" clients' wrongful conduct if the lawyer "has knowledge of facts that create a high probability that a client is seeking the lawyer's services in a transaction to further criminal or fraudulent activity." "Failure to make a reasonable inquiry is willful blindness punishable under the actual knowledge standard" of ABA Model Rule 1.2(d). The "Committee rejects the view that the actual knowledge standard of [ABA Model] Rule 1.2(d) relieves the lawyer of a duty to inquire further where the lawyer is aware of facts creating a high probability that the representation would further a crime or fraud." If a client "refuses to provide information or asks the lawyer not to evaluate the legality of a transaction the lawyer should explain to the client that the lawyer cannot undertake the representation unless an appropriate inquiry is made." | 4/29/2020 |
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| Under ABA Model Rule 1.18, a lawyer who has received "significantly harmful" information from a prospective client may not (absent consent) represent that prospective client's adversary if the lawyer is not hired — although under some circumstances that lawyer's colleagues might be able to screen that lawyer and represent the adversary. The term "significantly harmful" does not include "information that causes embarrassment or inconvenience," but includes "information relating to '[c]ivil or criminal liability.' Examples of "significantly harmful" information include: "views on various settlement issues including price and timing;" "personal accounts of each relevant event [and the and the prospective client's] strategic thinking concerning how to manage the situation;" an outline of "potential claims;" "'specifics as to amount of money needed to settle the case;" "the underlying facts and legal theories about [a] proposed lawsuit," "'sensitive personal information' in a divorce case;" "premature possession of the prospective client's financial information;" "knowledge of `settlement position;' "a 'prospective client's personal thoughts and impressions regarding the facts of the case and possible litigation strategies;'" "'the possible terms and structure of a proposed bid' by one corporation to acquire another." | 6/9/2020 |