Duties to the Public · 2-4% of the exam
22.3.4Assisting judicial misconduct and discrimination in practice (Rules 8.4(f), 8.4(g))
On this page
- Rule 8.4(f) — Assisting judicial misconduct.
- Rule 8.4(g) — Discrimination and harassment.
Why
A judicial code binds judges. A lawyer who supplies the means to a judicial ethics violation would otherwise sit outside its reach, facing nothing while only the judge answered for what the two of them did. Rule 8.4(g) closes a related gap, since harassment and discrimination can damage the profession without any civil rights statute being broken.
Plain English
If you know that what you are doing helps a judge violate the Code of Judicial Conduct, you are independently subject to discipline regardless of the judge's primary violation. Rule 8.4(g) separately reaches conduct the lawyer knows, or reasonably should recognize, as harassment or discrimination on an enumerated ground, where that conduct has a connection to the practice of law. Three elements must be present together there — the prohibited basis, the mental state, and the practice nexus — so wholly personal conduct sits outside the Rule.
Rule
Rule 8.4(f) — Assisting judicial misconduct.
Rule 8.4(f) — Assisting judicial misconduct. Discipline reaches any attorney who knowingly helps a judge or judicial officer engage in conduct that transgresses the Code of Judicial Conduct or other law. The "knowingly" element demands actual awareness — which may be inferred from the surrounding circumstances — that what the attorney is doing advances a judicial ethics violation.
Example 1
Ex. 1
A sitting judge is under investigation by the judicial conduct board. The judge instructs the court's law clerk to locate and destroy a set of internal communications before investigators can request them. The clerk, uncertain whether to comply, consults the supervising attorney at the court's administrative office. The supervising attorney reviews the situation, knows the documents are within the scope of the disciplinary investigation, and tells the clerk to proceed with the destruction. The supervising attorney knows the destruction assists a violation of the Code of Judicial Conduct. That knowledge makes the attorney independently subject to discipline under Rule 8.4(f). The primary violation belongs to the judge — but the lawyer commits a separate disciplinary offense by knowingly helping. Cut the judge out of the story and read what the supervising attorney knew on its own.
Trap
Rule
Rule 8.4(g) — Discrimination and harassment.
Rule 8.4(g) — Discrimination and harassment. An attorney is barred from behavior the attorney knows, or reasonably should recognize, as harassment or discrimination tied to any of these characteristics — race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status — provided the behavior has a connection to the practice of law. The reach includes (though is not confined to) client representation, dealings with witnesses, running a law office, and bar-association work. A civil rights statute violation is not required.
Three elements must all be satisfied:
- Prohibited basis: the behavior is harassment or discrimination on one of the enumerated grounds.
- Mental state: the attorney knows or reasonably should know that the behavior amounts to harassment or discrimination.
- Practice nexus: the behavior bears a connection to the practice of law. Wholly personal conduct sits outside Rule 8.4(g).
Two safe harbors sit in the black letter itself:
Rule 8.4(g) does not limit a lawyer's ability to accept, decline or withdraw from a representation in accordance with Rule 1.16, and
it does not preclude legitimate advice or advocacy consistent with these Rules.
Trap
Questions · 2
Q 01ch22-e09
Question 1 of 2 · Rule 8.4(f)
A judicial conduct board opened an investigation into Judge over allegations of undisclosed gifts. Judge told the court's Clerk to delete a folder of internal messages about those gifts before investigators could ask for it. Uncertain what to do, the Clerk brought the instruction to Attorney, the lawyer who supervises administration for the court. Attorney read the file, understood that the messages fell squarely within the scope of the pending inquiry, and told the Clerk to carry out the deletion anyway. Attorney knew the deletion would help Judge escape the code that governs judges. Judge has not yet been disciplined by the board. Is Attorney subject to discipline?
Keys 1 to 4 choose.