Vt. R. Prof. Cond. 8.4
It is professional misconduct for a lawyer to:
Comment
[1] 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.
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
[3] Discrimination and harassment by lawyers in violation ofparagraph (g) undennine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and antiharassment statutes and case law may guide application of paragraph (g).
[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law finn or law practice; and participating in bar association, business, or social activities in connection with the practice of law. Paragraph (g) does not prohibit conduct undertaken to promote diversity. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations.
[5] A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer's practice or by limiting the lawyer's practice to members of underserved populations in accordance with these rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer's representation of a client does not constitute an endorsement by the lawyer ofthe client's views or activities. See Rule 1.2(b).
[6] 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.
[7] 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.
Vt. R. Prof. Cond. 8.4
Board's Note-2022 Amendment
The amendment conforms with the ABA Model Rule. In addition, the new language harmonizes Rule 8.4(b) 's definition of "serious crime" with the definition of "serious crime" that appears in Administrative Order 9, Rule 21(c).
Prior to this amendment, A.O. 9 Rule 21 authorized the immediate interim suspension of any lawyer who had been convicted of a serious crime, as defined by A.O. 9, Rule 21(C). The rule defined "serious crime" more broadly than Rule 8.4(b), including in its definition any "lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." The language was not part of Rule 8.4(b), thus leaving possible the perverse situation in which a lawyer could be placed on an immediate interim suspension for certain conduct, but not finally disciplined for the same conduct.
Reporter's Notes-2017 Amendment
Rule 8.4(g) and new Comments [3]-[5] are amended to adopt, with minor verbal changes, amendments to the American Bar Association's Model Rules ofProfessional Conduct approved by the ABA on August 8, 2016. See ABA, House of Delegates 2016 Annual Meeting Daily Journal, at 5. Former Comment [3] is deleted and replaced by new Comment [3]. Former Comments [4] and [5] are renumbered [6] and [7].
Despite prior unsuccessful amendment efforts, the Model Rules had not previously contained a specific provision prohibiting discrimination and harassment. Former Comment [3], adopted in 1988, had stated that discrimination and harassment could violate Rule 8.4(d) if they constituted conduct prejudicial to the administration ofjustice. That Comment, however, was only a guide to interpretation and was of narrow scope. See, generally, ABA Revised Report 109 (House of Delegates, August 2016). New Model Rule 8.4(g) was adopted to fill this void with a black letter rule. Its purpose is to fulfill the ABA's responsibility to "lead anti-discrimination, anti-harassment, and diversity efforts not just in the courtroom, but wherever it occurs in conduct by lawyers related to the practice of law. The public expects no less of us." Id. at 15.
Vermont originally adopted the predecessor ofV.R.Pr.C. 8.4(g) in 1986, becoming one of a group of 25 states frustrated by ABA inaction. ABA Revised Report 109, at 5 n.1l. In addition, 13 states have adopted language similar to former Comment [3]; only 14 states do not address the matter at all in their Rules of Professional Conduct. Id. at 5-6 un. 13, 14. The present amendment ofV.R.Pr.C. 8.4(g) supersedes the prior language, both for uniformity with the amended ABA Model Rule and to incorporate the more specific and detailed language of the ABA amendment and its additions to the Comment.
The amended rule prohibits conduct in the practice of law that discriminates or harasses on the basis of a lengthy list of characteristics. The rule carries forward from the former Vermont rule "color," "ancestry," and "place of birth," which are also included in the anti-discrimination provision of the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(a)(l). The addition in the Vermont rule of "other grounds that are illegal or prohibited under federal or state law" extends the prohibition to include provisions such as 21 V.S.A. § 495(a)(5) (discrimination on the basis of HIV), 39 U.S.C. § 4301 et seq. (discrimination on the basis of veteran status), and 42 U.S.C. § 2000 et seq. (discrimination on the basis of genetic information).
Comment [4] makes clear that "conduct related to the practice of law" is to be understood broadly to include many activities beyond the confines of traditional client representation, including law practice management and bar association or other practice-related activities including social occasions.
The rule also makes clear that it does not affect the provisions of Rule 1.16 concerning mandatory or optional refusal or optional withdrawal from representation. Rule 1.16(a)(l) requires withdrawal if the representation would lead to a violation ofthe Rules of Conduct or other law. Thus, a lawyer should withdraw if she or he concludes that she or he cannot avoid violating Rule 8.4(g). The optional grounds for withdrawal set out in Rule 1.16(b) must also be understood in light of Rule 8.4(g). They cannot be based on discriminatory or harassing intent without violating that rule.
Finally, Rule 8.4(g) permits "legitimate advice or advocacy" consistent with the rules. Essentially, as new Comment [5] suggests, this language calls on the lawyer not to forget that even the client whose views or conduct would violate legal prohibitions against discrimination and harassment applicable to him or her may deserve representation under Rules 6.1 and 6.2. As Rule 1.2 makes clear, representation does not constitute endorsement ofa client's views and may include efforts to assist the client to avoid unlawful activity. The effect ofRule 8.4(g) is to prohibit the lawyer from expressing views as his own that would violate that rule.
Reporter's Notes-2009 Amendment
V.R.P.C. 8.4 is amended to conform to changes in the Model Rule, retaining significant variations in the Vermont Rule as originally adopted. That rule incorporated the specific former Code language of "serious crime" in Rule 8.4(b) and carried forward paragraphs (g) and (h) from the former Code. See Reporter's Notes to V.R.P.C. 8.4(1999). The present amendment follows the Model Rules in deleting subdivision (h) and related language in Comment [5] in light of the omission from these Rules of ABA Model Rule 1.8(j) prohibiting sexual relations with a client (see Reporter's Notes to V.R.P.C. 1.8 and comment [17] to that rule) and the fact that as drafted the provision was overly broad. The Supreme Court has addressed a number of issues under V.R.P.C. 8.4: In re Sinnott, 2005 VT 109, 178 Vt. 646, (mem.) 891 A.2d 896 (federal indictment and negotiated guilty plea to two felony counts of interstate transmission of stolen property provided clear and convincing evidence of violation of V.R.P.C. 8.4(c), (d), and (h) as grounds for disbarment); In re McGinn, 2005 VT 71, 178 Vt. 604, 877 A.2d 688 (mem.) (admission of facts as to transactions involving criminal conduct provided clear and convincing evidence of violation of V.R.P.C. 8.4(c), (d), and (h) as grounds for disbarment); In re Andres, 2004 WL 5581930 (Vt., September 29, 2004) (assault on man in wheelchair was sufficient basis for finding of violation of V.R.P.C. 8.4(h) and sanction of three-year suspension from practice of law); In re Lane, 174 Vt. 550, 811 A.2d 207 (2002) (mem.) (admission of facts as to misappropriation of funds provided clear and convincing evidence of violation of V.R.P.C. 8.4(c), (d), and (h) as grounds for disbarment).
The ABA Reporter's Explanation in pertinent part is as follows:
TEXT:
Paragraph (e): Add material deleted from Rule 7.1
Rule 7.1 [formerly provided] that a lawyer may not make a false or misleading communication about the lawyer or the lawyer's services and, further, that a communication is false or misleading, inter alia, if it "states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law." The Commission recommends that this prohibition be moved out of Rule 7.1 and added to paragraph (e) in order to clarify that the prohibition is not limited to statements made in connection with marketing legal services.
COMMENT:
[1] The purpose of this new Comment is to explain when a lawyer is subject to discipline for violating or attempting to violate the Rules "through the acts of another" and to distinguish such conduct from advising a client concerning action the client is legally entitled to take.
Comment [3] from the original Model Rules Comment is added to elaborate on the provisions of paragraph (g), which is unique to the Vermont Rules.
The final sentence of Comment [5], not included in the Model Rules Comment, is deleted in light of the addition of V.R.P.C. 1.8(j) and Comments [17]-[19].