Monday, June 17, 2019

Maine adopts (a different version of) ABA Model Rule 8.4(g) -- UPDATED

UPDATED (6-17-19)

In my original post on this, I stated something along the lines of "Maine adopted the Model Rule" and several readers yelled "Objection" because Maine's adopted version of the rule is different than the Model Rule.  

And they are correct.  Objection granted! So here is an updated post:

As you probably know, in 2016 the ABA adopted an amendment to Model Rule 8.4 to add a new section regulating conduct deemed to constitute discrimination or harassment.  See MR 8.4(g).

The new rule has proved controversial, and since its adoption by the ABA, only one state (Vermont) has incorporated it into its own rules. At least four states (Arizona and Tennessee among them) have affirmatively rejected it, and one or two more (Nevada and Pennsylvania) have abandoned efforts to adopt it.  (To read a little about why the rule is controversial go here, here, here, and here.)

Well, the landscape just changed a little because Maine recently adopted some aspects of the Model Rule.  In a prior post I stated the Maine had adopted the Model rule, but the rule adopted in Maine differs from the ABA Model Rule, so maybe it is more accurate to say that Maine adopted an amended version of the Model Rule.

The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination.  I don't know why it eliminates the reference to marital status.  I assume the elimination of socioeconomic status has to deal with arguments that this category is too vague.

Second, the Maine rule actually defines the concepts of discrimination and harassment as they apply to the rule.

Third, although the Maine rule adopted the Model Rule's language of "related to the practice of law" to define when the rule applies, extending it from the more limiting "when representing a client", the adopted rule in Maine does not extend the notion of "the practice of law" as much as the Model Rule does.  Unlike the Model Rule which extends the notion of "related to the practice of law" to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law.  This change is in response to a common criticism of the Model Rule -- the fact that it expands the application of the rule to conduct outside the practice of law.

Finally, there is one aspect of the new rule that I find confusing.  The Model Rule considers misconduct when a lawyer engages in conduct that the lawyer "should know" is discrimination or harassment.  This means the standard upon which it is based is negligence.  The Maine rule adopts this same language but in the definition of discrimination refers to conduct that the lawyer "reasonably should know manifests an intention" to engage in the conduct (as described in the rule).  Also, in the "Guidance" section below the rule, which is not part of the rule itself, it says that "the extent of enforcement or initiation of formal disciplinary proceedings will depend on "the level of intentionality" and seriousness of the conduct.  So, even though the language sounds like negligence, is the Maine rule based on intent?

You can read the text of the new rule as adopted in Maine here.

The ABA Journal has more on the story here.

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