FW: ABA Proposed Rule 8.4
At a recent Maryland Bar Ethics Committee meeting the attached proposal was discussed it is a proposal by the ABA to amend Rule 8.4, Personally, I think the proposal while well intended creates some unintended consequences and is basically unnecessary considering the rather broad coverage of these issues by federal and state law. Let me know if the members of this committee would like IMLA to comment on the proposed rule and if you agree with me that the comments should be against adoption. I can draft a proposed comment for your review if you agree. Chuck
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego
Wouldn't it be more prudent to adopt a rule making it unethical to violate in connection with the practice of law any applicable federal, state, or local rule respecting discrimination based on race, sex, etc. regardless of whether the attorney has been found civilly or criminally liable for such discrimination? This would avoid subjecting lawyers to potentially inconsistent standards but give clients & the bar a way to enforce ethical standards even if other regulatory authorities or prosecutors declined to act Don't know what double jeopardy implications this might have in event jeopardy had attached in same jurisdiction as bar & prosecution was unsuccessful.
Pete Haskel
Dallas
From: Ethics [mailto:ethics-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Thursday, January 14, 2016 9:34 AM
To: ethics@lists.imla.org
Subject: [Ethics] FW: ABA Proposed Rule 8.4
At a recent Maryland Bar Ethics Committee meeting the attached proposal was discussed it is a proposal by the ABA to amend Rule 8.4, Personally, I think the proposal while well intended creates some unintended consequences and is basically unnecessary considering the rather broad coverage of these issues by federal and state law. Let me know if the members of this committee would like IMLA to comment on the proposed rule and if you agree with me that the comments should be against adoption. I can draft a proposed comment for your review if you agree. Chuck
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego
I wholeheartedly agree. Rule 2-400 of the California Rules of Professional Conduct has addressed this issue and the conduct must be found to be unlawful by an appropriate civil, administrative, or judicial tribunal under the applicable state or federal law for the discriminatory conduct to be actionable. Here is the rule and the discussion of the rule:
Rule 2-400 Prohibited Discriminatory Conduct in a Law Practice
(A) For purposes of this rule: (1) "law practice" includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law; (2) "knowingly permit" means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and (3) "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public. (B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in: (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating representation of any client. (C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed.
Discussion: In order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule. A complaint of misconduct based on this rule may be filed with the State Bar following a finding of unlawfulness in the first instance even though that finding is thereafter appealed. A disciplinary investigation or proceeding for conduct coming within this rule may be initiated and maintained, however, if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court's inherent authority to impose discipline, or other disciplinary standard. (Added by order of Supreme Court, effective March 1, 1994.)
I would suggest that we comment and advocate for a finding of unlawfulness before an ethics complaint can be actionable. I hope that this information is helpful.
Gregory P. Priamos
County Counsel
County of Riverside
gpriamos@co.riverside.ca.usmailto:gpriamos@co.riverisde.ca.us
951.955.6300
[cid:image001.jpg@01D14EB9.405AE4F0]
CONFIDENTIALITY NOTICE: This communication is intended for the use of the individual or entity to which it is addressed and may contain attorney work product and/or attorney client information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify our office by reply e-mail or by telephone and immediately delete this communication and all its attachments.
From: Ethics [mailto:ethics-bounces@lists.imla.org] On Behalf Of Haskel, Peter
Sent: Thursday, January 14, 2016 8:04 AM
To: ethics@lists.imla.org
Subject: Re: [Ethics] ABA Proposed Rule 8.4
Wouldn't it be more prudent to adopt a rule making it unethical to violate in connection with the practice of law any applicable federal, state, or local rule respecting discrimination based on race, sex, etc. regardless of whether the attorney has been found civilly or criminally liable for such discrimination? This would avoid subjecting lawyers to potentially inconsistent standards but give clients & the bar a way to enforce ethical standards even if other regulatory authorities or prosecutors declined to act Don't know what double jeopardy implications this might have in event jeopardy had attached in same jurisdiction as bar & prosecution was unsuccessful.
Pete Haskel
Dallas
From: Ethics [mailto:ethics-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Thursday, January 14, 2016 9:34 AM
To: ethics@lists.imla.orgmailto:ethics@lists.imla.org
Subject: [Ethics] FW: ABA Proposed Rule 8.4
At a recent Maryland Bar Ethics Committee meeting the attached proposal was discussed it is a proposal by the ABA to amend Rule 8.4, Personally, I think the proposal while well intended creates some unintended consequences and is basically unnecessary considering the rather broad coverage of these issues by federal and state law. Let me know if the members of this committee would like IMLA to comment on the proposed rule and if you agree with me that the comments should be against adoption. I can draft a proposed comment for your review if you agree. Chuck
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego
Over the thirty-plus year life of the Model Rules of Professional Conduct, there has been a tendency to add provisions that subject lawyers to disciplinary action for conduct that previously may have subjected the lawyer only to civil liability. Examples include the supervisory requirements in Rules 5.1 and 5.3 and the reporting-up-or-out requirements of Rule 1.13. My initial reaction is that an argument to the effect that anti-discrimination laws obviate the need for a disciplinary rule isn't likely to carry the day. As to the California approach that requires a tribunal to first find unlawful conduct before the bar can impose discipline, I don't think the model rules anywhere require civil liability as a predicate to discipline. That would seem to undermine the rationale for making the target conduct a disciplinary offense. Why, for example, should a client have to succeed in a suit for conversion before a lawyer can be disciplined for mishandling the lawyer's trust account (or, for that matter, make a claim against a client security fund)?
I haven't paid much attention to proposed rule 8.4(g) as yet. I will think about it some more an chime in again in a couple of days.
Phillip M. Sparkes
Assistant Professor of Law (ret.)
(859) 912-2856
From: Ethics ethics-bounces@lists.imla.org on behalf of Priamos, Greg GPriamos@co.riverside.ca.us
Sent: Thursday, January 14, 2016 1:55 PM
To: 'ethics@lists.imla.org'
Subject: Re: [Ethics] ABA Proposed Rule 8.4
I wholeheartedly agree. Rule 2-400 of the California Rules of Professional Conduct has addressed this issue and the conduct must be found to be unlawful by an appropriate civil, administrative, or judicial tribunal under the applicable state or federal law for the discriminatory conduct to be actionable. Here is the rule and the discussion of the rule:
Rule 2-400 Prohibited Discriminatory Conduct in a Law Practice
(A) For purposes of this rule: (1) “law practice” includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law; (2) “knowingly permit” means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and (3) “unlawfully” and “unlawful” shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public. (B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in: (1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating representation of any client. (C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed.
Discussion: In order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule. A complaint of misconduct based on this rule may be filed with the State Bar following a finding of unlawfulness in the first instance even though that finding is thereafter appealed. A disciplinary investigation or proceeding for conduct coming within this rule may be initiated and maintained, however, if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard. (Added by order of Supreme Court, effective March 1, 1994.)
I would suggest that we comment and advocate for a finding of unlawfulness before an ethics complaint can be actionable. I hope that this information is helpful.
Gregory P. Priamos
County Counsel
County of Riverside
gpriamos@co.riverside.ca.usmailto:gpriamos@co.riverisde.ca.us
951.955.6300
[CountyLogo]
CONFIDENTIALITY NOTICE: This communication is intended for the use of the individual or entity to which it is addressed and may contain attorney work product and/or attorney client information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify our office by reply e-mail or by telephone and immediately delete this communication and all its attachments.
From: Ethics [mailto:ethics-bounces@lists.imla.org] On Behalf Of Haskel, Peter
Sent: Thursday, January 14, 2016 8:04 AM
To: ethics@lists.imla.org
Subject: Re: [Ethics] ABA Proposed Rule 8.4
Wouldn’t it be more prudent to adopt a rule making it unethical to violate in connection with the practice of law any applicable federal, state, or local rule respecting discrimination based on race, sex, etc. regardless of whether the attorney has been found civilly or criminally liable for such discrimination? This would avoid subjecting lawyers to potentially inconsistent standards but give clients & the bar a way to enforce ethical standards even if other regulatory authorities or prosecutors declined to act Don’t know what double jeopardy implications this might have in event jeopardy had attached in same jurisdiction as bar & prosecution was unsuccessful.
Pete Haskel
Dallas
From: Ethics [mailto:ethics-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Thursday, January 14, 2016 9:34 AM
To: ethics@lists.imla.orgmailto:ethics@lists.imla.org
Subject: [Ethics] FW: ABA Proposed Rule 8.4
At a recent Maryland Bar Ethics Committee meeting the attached proposal was discussed it is a proposal by the ABA to amend Rule 8.4, Personally, I think the proposal while well intended creates some unintended consequences and is basically unnecessary considering the rather broad coverage of these issues by federal and state law. Let me know if the members of this committee would like IMLA to comment on the proposed rule and if you agree with me that the comments should be against adoption. I can draft a proposed comment for your review if you agree. Chuck
Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA’s Annual Seminar April 15-18, 2016 – Omni Shoreham, Washington D.C.
IMLA’s Annual Conference September 28 – October 2, 2016 – San Diego
