Larry Smith, Former Chair of the Diversity Committee of the ABA Section of Litigation’s Ethics and Professionalism Committee and ABA Section of Litigation Diversity Leadership Award recipient participated in a panel discussion regarding the American Bar Association’s (ABA) Model Rule 8.4(g), which represents more than 20 years of discussion, debate and compromise before it was passed by the ABA house of Delegates in 2016.

Currently, about half of the states have adopted the rule or some version of it, but there has been resistance to adoption in some jurisdictions and challenges in others. Constitutional issues of free speech and religious exceptions will likely be heavily influenced by larger contexts, including the current case(s) pending before the U.S. Supreme Court on religious exceptions to anti-discrimination laws in state and local environments (Fulton v. City of Philadelphia, concerning foster care through the Catholic Archdiocese vs. the Philadelphia Department of Human Services.  Oral argument was held on Nov. 4, 2020 and the decision could impact a wide range of anti-discrimination laws around the country).

Larry notes that this Model Rule is similar to Florida’s Rule 4-8.4(d), but points out important differences. “For example, Florida’s rule does not cover harassment while the Model Rule does.  Florida’s Rule also requires that the conduct be done “knowingly, or through callous indifference,” while the Model Rule does not require such a high standard. And, while the Model Rule also applies to conduct within a law firm rather than outward engagement with clients, courts and other attorneys, the Florida Supreme Court has been reluctant to venture that far,” he continued.