Rule 8.4 Misconduct

Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning, or application of the law apply to challenges of legal regulation of the practice of law. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director, or manager of a corporation or other organization. This rule prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law. This rule does not, for example, prohibit a lawyer from advising and supervising a lawful covert investigation into matters involving criminal law, civil law, or constitutional rights, though the lawyer may not participate directly in the covert investigation. See Rule 9.1 for the definition of “lawful covert investigation.” This rule additionally does not prohibit a lawyer from engaging in lawful forms of deception if the conduct is among their duties of employment as a non-lawyer by a government agency, a law firm, or other entity. Although assisting a client under Rule 1.2(f) may violate federal drug laws, it is not a violation of Rule 8.4(b). Rules 8.4(f) and (g) are intended to be a counterpart to Rules 3.4 and 4.4(a), which declare that, in representing a client, a lawyer shall not use means that lack any substantial purpose other than to embarrass, delay, or burden a third person. Harassment and invidious discrimination are intolerable because of their adverse effect on the proper administration of justice. The administration of justice is impeded when a lawyer engages in conduct that has no legitimate purpose other than to intimidate or distract those who have independent responsibilities and roles in the justice system. For instance, our justice system depends on the effectiveness of adversary counsel. One of the fundamental aims of our court rules, including the Rules of Professional Conduct, is to assure that adversaries have an equal opportunity to prepare and present their case, so as to advance the achievement of a just result. A lawyer’s harassment of or invidious discrimination against other participants in a matter can impair their effectiveness, whether as advocates for opposing views or as officers of the court. An attorney who knowingly engages in such conduct perverts advocacy, obstructs the proper administration of justice, and undermines public respect for, and acceptance of, our adversary system and the legal profession. The persons who are protected from a lawyer’s harassment or invidious discrimination under this rule include seated jurors, that is, jurors who have gone through the selection process and have been sworn to adjudicate a case. Allegations of harassment or invidious discrimination against prospective jurors should be handled by trial judges through the procedures developed under Batson v. Kentucky, 476 U.S. 79 (1986). A lawyer's harassing or invidiously discriminatory conduct directed to persons working for the lawyer or the lawyer's firm adversely affects the proper administration of justice by undermining confidence in the legal profession. Because agencies and courts routinely adjudicate disputes arising out of allegations of harassment and invidious discrimination in the workplace, the existence of such misconduct should be determined, in the first instance, by an agency or court before it may be the subject of professional discipline.