Objections were offered by several ABA
members, the Christian Legal Society, and
the United States Conference of Catholic
Bishops.
The current Model Rule 8.4 prohibits
attorneys from engaging in six types of
conduct, all of which might either adversely
impact an attorney’s fitness to practice law or
would prejudice the administration of justice.
The proposed subsection (g) would authorize
discipline for discrimination or harassment
that may be in bad taste or wrongful, but
may not adversely affect an attorney’s fitness
to practice law.
The change has been criticized as
unconstitutionally vague as terms
like “harass,” “discrimination,” “sexual
orientation,” and “gender identity” have
problematic or uncertain definitions and
are not objectively determinable. Some
scholars have even suggested such revisions
improperly limit a lawyer’s freedom of speech
and assembly.
MEDIATION
BY RETIRED
JUDGES
Resolve cases by
mediation more
effectively and
efficiently than
through litigation
and trial.
Proponents of the change point to similar
restrictions on judges in the Model Code of
Judicial Conduct. However, judges are direct
representatives of the state. It is arguable,
therefore, that judges should be subject to
such limitations.
The changes to Rule 8.4 are broader than
the judicial conduct regulations. Where
the CJC Rule 2.3(C) applies to “lawyers in
proceedings before the court,” proposed Rule
8.4(g) applies “in the conduct related to the
practice of law.” So, a law firm partner would
potentially be subject to discipline, not only
for groping or harassing an associate while in
court, but also engaging in the same conduct
while at the celebratory dinner afterward.
The discussion reminded me of the
lawsuit depicted in the Tom Hanks movie,
“Philadelphia,” where Hanks’ character, as
the associate attorney, recovered a financial
award for claims of discrimination because of
his sexual orientation. In addition to Hanks’
character obtaining a financial recovery,
proposed Rule 8.4(g) may cause the partners
depicted to lose their law licenses.
The desire to be politically correct causes
many in academia and society to suggest
regulation of all sorts of conduct. The
question is not whether harassment or
discrimination is appropriate. It is not.
Rather, the question is whether boorish or
even tortious conduct should be a matter for
the lawyer disciplinary system.
Welcome to Andy Askew
The North Dakota Delegation in the ABA
House of Delegates (HOD) was pleased to
welcome Andrew Askew from Bismarck. A
change to SBAND’s bylaws in January 2016
allowed for the election of a Young Lawyer
Representative in the House of Delegates.
Askew was elected at the SBAND Annual
Meeting in June and will serve a two-year
term. He is a welcome addition to North
Dakota’s small HOD Delegation.
Karen K. Klein
US Magistrate Judge, Retired
30 years of judicial experience
Successfully mediated thousands of
cases Teaches mediation skills to federal
judges
[email protected]
701-715-4629
Mary Muehlen Maring
ND Supreme Court Justice, Retired
20 years of litigation experience
Almost 18 years judicial experience
Mediation training: National Judicial
College
[email protected]
701-425-6340
www.kleinmaringmediation.com
SUMMER 2016
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