Rule 8.4 of the Model Rules of Professional Conduct is a bit of a catch-all. In general terms, it prohibits "lawyer misconduct." Even more ambiguous, Rule 8.4(d) prohibits "conduct prejudicial to the administration of justice." Certainly, Rule 8.4 can be described as broad, or even vague. Violations of Rule 8.4 range from public statements concerning judges to fraud.
The most recent criticism of Rule 8.4, however, is that it fails to facially address bias, discrimination, or harassment and fails to address the scope of the issue in the legal profession. A proposed change to the ABA's Model Rules of Professional Conduct seeks to prohibit lawyers from engaging in bias and harassment at work and would punish lawyers for poor conduct outside of the office.
The Standing Committee on Ethics and Professional Responsibility's proposed amendment to Rule 8.4 would deem as misconduct any harassment or discrimination “related to the practice” of law based on a person’s race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. This proposed amendment would extend the rules beyond the attorney-client relationship to the employer-employee relationship.
Several state bar associations have considered amendments similar to those proposed by the Standing Committee on Ethics and Professional Responsibility, and some states have even passed those amendments. Keep an eye on your state's position on amendments to Rule 8.4 – not only is it a risk management issue, but it may become a business management issue.
