The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 493 on the purpose, scope, and application of ABA Model Rule 8.4(g).
Here is a summary from the abstract:
Rule 8.4(g) covers conduct related to the practice of law that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. However, and as this opinion explains, conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.
The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective.
I have written about the Rule here and here, and submitted letters to several state supreme courts in opposition to Rule 8.4(g). The ABA opinion does not cite my work, or that of any other 8.4(g) critic. (The opinion frequently cites supporters of the rule). But the opinion addresses several concerns that I, and others, have raised. I will provide a summary of the opinion in this post.
The opinion makes clear that the “severe or pervasive” standard does not apply to Rule 8.4(g). A single incident could amount to misconduct:
For example, a single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of law would likely not be severe or pervasive enough to violate Title VII, but would violate Rule 8.4(g).The isolated nature of the conduct, however, could be a mitigating factor in the disciplinary process.
And in a footnote, the opinion lists 5 factors to consider with respect to discipline:
Whether discipline is imposed for any particular violation of Rule 8.4(g) will depend on a variety of factors, including, for example: (1) severity of the violation; (2) prior record of discipline or lack thereof; (3) level of cooperation with disciplinary counsel; (4) character or reputation; and (5) whether or not remorse is expressed.
The capacious nature of the fourth factor will likely swallow all others. And the fifth factor will likely be used to cow attorneys into admitting their fault.