ABA Model Rule 8.4 serves as a general warning against attorney misconduct. It prohibits attorneys from inducing others from violating the rules of professional conduct. It also reminds lawyers that they should not engage in acts of dishonesty, fraud, deceit, misrepresentation, or other criminal activity. The ABA considers these actions as central concepts of conduct. Lawyers must not engage if respect for the legal profession and the proper administration of justice are not maintained.

Some examples include:

• Advising a client to offer a key witness in a real estate matter in exchange for favorable testimony in a criminal case.
• Advising a client to ignore a court order or subpoena.
• Advising a client to invent favorable evidence.

Most criminal conduct by a lawyer reflects a disregard for the law. While the above actions involved clients, what about acts by attorneys that trigger general concerns about honesty and fitness to practice law? For example, what if an attorney has a gambling addiction or falls asleep at the wheel and while driving home causes a major collision? Do activities that fall outside the practice of law concern a lawyer’s character and fitness to practice law?

New Rule on Harassment and Discrimination

In 2018, the ABA added ABA Model Rule 8.4(g) to protect against harassment and discrimination. Lawyers challenged the rule for being broad and violating the First Amendment right to free speech and expression. The rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether the conduct violates the rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.^[1]

We include ABA Model Rule 8.4 because it allows for and encourages important discussion. At the time of writing this book, we did not feel that ABA Model Rule 8.4 was in any way settled. We predict an ongoing discussion on attorney conduct, but also on any perceived restrictions on attorney conduct. As we said in the beginning of this chapter, once you are a lawyer, you are always a lawyer. Where does the oversight of ABA Model Rule 8.4 end on a person who is a member of the bar? As this is an ongoing discussion, we encourage you to seek guidance when necessary, from your local state bar ethics hotlines or the American Bar Association.