Tuesday, August 6, 2019

Alaska asks for comments on whether to adopt Model Rule 8.4(g)

The Alaska Bar Association recently announced that it is considering adopting a rule equivalent to Model Rule 8.4(g), although the rule would be codified as Rule 8.4(f).  The Bar Association will be taking comments on whether to adopt the new rule until August 15. Comments may be sent by email to page@alaskabar.org, or by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, Alaska 99501, or by calling Bar Counsel At (907) 272-7469.

As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial.  The controversy arises out of the fact that, at least as originally adopted by the ABA, the rule in part imposes a threat of discipline for otherwise protected speech outside the practice of law based on a standard of negligence. 

Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it, and one of those (Maine) adopted it after making several important amendments.  See here.

I have written a lot about the rule and the controversy behind it.  You can click here to see my posts since it was proposed in reverse order, meaning that they will be listed with the most recent one on top.  Scroll down, and read from the bottom up if you want to read them in chronological order.

Illinois, where I live, has had an anti discrimination rule since 2010 or so (IRPC 8.4(f)), and I believe it is better than Model Rule 8.4(g) because it bases the evaluation of the conduct on a finding of violation of the law, rather than on a subjective evaluation by the disciplinary agency.  You can read the text of Illinois rule 8.4(f) here.

For a chart prepared by the ABA identifying the status of Model Rule 8.4(g) among all jurisdictions go here.

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