Nicholas Walter Publishes Article for The Maricopa Lawyer on ABA Model Rule 8.4(g)
Phoenix, Ariz. (November 15, 2021) - Phoenix Associate Nicholas (“Nick”) Walter recently authored an article for The Maricopa Lawyer, the official monthly publication of the Maricopa County Bar Association (MCBA). The article, titled “Dying Embers: Is ABA Model Rule 8.4(g) Still Alive?” reviews the state of ABA Model Rule 8.4(g), which prohibits lawyers from engaging in “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
Mr. Walter begins the article by outlining the history of Rule 8.4(g), explaining that since it was proposed in 2016, most states have declined to adopt it. Nevertheless, he notes that although the rule “seemed doomed to fail in a majority of states” by late 2020, the rule is actually “not completely dead,” thanks to a recent ABA ethics opinion and a federal case in Pennsylvania.
Mr. Walter goes on to describe the ABA opinion, ultimately concluding that it will likely have little impact because while it provides examples of behavior that would constitute discrimination or harassment under the rule, it fails to address other critical issues. Similarly, the author reviews the Pennsylvania federal court decision, pursuant to which a preliminary injunction against the rule was issued. According to Mr. Walter, this decision signaled that “courts will frown on versions of Rule 8.4(g) that prohibit speech. . . .” Explaining that Pennsylvania has tried once more to adopt a new version of the rule, Mr. Walter nevertheless closes the article with the prediction that “[o]verall, Rule 8.4(g) does not appear headed for widespread adoption.”
Mr. Walter is a member of Lewis Brisbois’ General Liability Practice. He focuses his practice on premises liability, employment litigation, civil rights, and contractual disputes, representing clients across several industries in all aspects of litigation, mediation, and arbitration.