New Mexico joins Vermont as the second state to adopt Model Rule 8.4(g) in its entirety. States
Passed in 2016, this Rule prohibits lawyers from engaging in behavior connected to the practice of law that he or she “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.” The rule makes clear that it does not affect the lawyer’s ability to choose who the lawyer represents in accordance with Model Rule 1.16.
There has been criticism from some in the legal community since the ABA passed Model Rule 8.4(g). Most of these critiques are concerned with the curtailment of free speech. The most contentious part of this Rule is how the comments to the Rule define harassment. According to the ABA, harassment is “derogatory and demeaning” behavior.
The Model Rules are purely advisory to the states, and they do not bind any jurisdiction. In 2017, Vermont became the first state to adopt Model Rule 8.4(g) in its entirety. Several states have chosen to include some form of this Rule in their state-specific rules on professionalism, including Maine, Missouri, and Colorado. While those who oppose this amendment believe it is harmful to free speech, the ABA states that this Rule is intended to eradicate discrimination and harassment in the practice of law. The ABA stated, in an article detailing the intent of Model Rule 8.4(g), that it merely “calls for lawyers to educate themselves about reasonable standards of acceptable conduct.” Only time will tell whether this Rule will become the new norm among the states.
Read more about the history and intent of Model Rule 8.4(g) here. Read more about New Mexico’s adoption here.
