endnotes
1. Ariz. Rules of Professional
Conduct, Rule 42, ARIZ.R.S.
CT., ER 8. 4 cmt. 3.
2. Id. Rule 41(g).
3. Id. Rule 41 cmt. 1.
4. ABA MODEL RULES OF PROF.
CONDUCT Rule 8. 4 cmt. 3
(effective 1998–Aug. 8, 2016).
5. Samson Habte, ABA Delegates
Overwhelmingly Approve Anti-Bias Rule, ABA/BNA LAW.
MANUAL ON PROF. CONDUCT,
Aug. 10, 2016.
6. ABA Standing Comm. on
Ethics & Prof. Responsibility
et al., Report to the House of
Delegates on Model Rule 8. 4,
Aug. 2016, at 2, www.
americanbar.org/content/
dam/aba/administrative/
professional_responsibility/
scepr_report_to_hod_rule_ 8_
4_amendments_05_ 31_2016_
resolution_and_report_posting.
authcheckdam.pdf (last visited
Dec. 5, 2016).
7. ABA MODEL RULE 8. 4 cmt. 3,
supra note 4.
8. MODEL RULES OF PROF. CON-
DUCT pmbl. ¶ 14 (“Comments
do not add obligations to the
Rules but provide guidance for
practicing in compliance with
the Rules.”); id. ¶ 21 (“The
Comments are intended as
guides to interpretation, but
the text of each Rule is authoritative.”).
9. Hon. Louraine C. Arkfeld,
Amending Rule 8. 4 of the Model
Rules of Professional Conduct,
VOICE OF EXPERIENCE (ABA),
July 2016, www.americanbar.
org/publications/voice_of_
experience/20160/july-2016/
amending-rule-8-4-of-the-
model-rules-of-professional-
conduct.html (last visited
Dec. 5, 2016). The ABA
Ethics Committee formed this
working group at the request
of the ABA Goal III Commis-
sions, referring to Goal III of
the ABA’s Association Goals:
“Eliminate Bias and Enhance
Diversity.” ABOUT ABA GOAL
III, www.americanbar.org/
groups/disabilityrights/
initiatives_awards/ goal_3.html
(last visited Dec. 5, 2016).
10. ABA Standing Comm. on
Ethics & Prof. Responsibility,
Draft Proposal to Amend Model
Rule 8. 4, Dec. 22, 2015, www.
americanbar.org/content/
dam/aba/administrative/
professional_responsibility/
rule_ 8_ 4_language_choice_
memo_ 12_ 22_2015.
authcheckdam.pdf
(last visited Dec. 5, 2016).
11. Id.
12. See, e.g., Letter from the ABA
Ctr. for Prof. Responsibility
Diversity Comm. to the ABA
Standing Comm. on Ethics &
Prof. Responsibility (Feb. 16,
2016).
13. See, e.g., Letter from 52 ABA
member attorneys to the ABA
Standing Comm. on Ethics
& Prof. Responsibility (n.d.);
Letter from Regent Univ. Sch.
of Law Students and Alumni
to the ABA Standing Comm.
on Ethics & Prof. Responsibility (Mar. 9, 2016) (stating that
the amendment can potentially
create a duty to represent a
client “whose cause is so repugnant it would certainly impair
the client–lawyer relationship”).
14. Letter from the U.S. Confer-
ence of Catholic Bishops to
the ABA Standing Comm. on
Ethics & Prof. Responsibility
(Mar. 10, 2016).
15. Letter from the Christian Legal
Soc’y to the ABA Standing
Comm. on Ethics & Prof.
Responsibility (Mar. 10, 2016).
16. See, e.g., Letter from Prof.
Eugene Volokh, UCLA School
of Law, to the ABA Standing
Comm. on Ethics & Prof.
Responsibility (n.d.) (citing
“socioeconomic status” as a
vague term that could prevent
law firms from hiring law
students with Ivy League
pedigrees, or giving a hand-up
to students of impoverished
backgrounds).
17. See Letter from ABA Section
of Labor and Employment
Law to Myles V. Lynk, Chair
of ABA Standing Comm. on
Ethics & Prof. Responsibility
(Mar. 11, 2016).
18. Habte, supra note 5.
19. See MODEL RULES OF PROF.
CONDUCT Rule 8. 4 cmt. 4
(“Conduct related to the
practice of law includes …
operating or managing a law
firm or law practice”).
20. Id.
21. Id. Rule 1. 7; see, e.g., In re
Walker, 24 P.3d 602 (Ariz.
2001) (censuring lawyer for
personal interest conflict of
interest when he admitted to
“touching his client’s breast
and attempting to enter into a
consensual sexual relationship
with her”); In re Piatt, 951
P.2d 889 (Ariz. 1998) (
censuring lawyer for a personal interest conflict of interest when he
made explicit sexual comments
to his divorce client).
22. Piatt, 951 P.2d at 891.
23. See MODEL RULES OF PROF.
CONDUCT Rule 8. 4 cmt. 5 and
Rule 1. 2(b) (“A lawyer’s representation of a client, including
representation by appointment,
does not constitute an endorsement of the client’s political,
economic, social or moral views
or activities”).
24. Id. Rule 8. 4(g) (“This paragraph
does not limit the ability of a
lawyer to accept, decline, or
withdraw from a representation
in accordance with Rule 1. 16.”).
25. Id. Rule 1. 16(a)( 1) (requiring
a lawyer to decline or withdraw
from representation if it will
result in the lawyer’s violation
of the rules of professional
conduct); Rule 1. 7(a)( 2) (
stating that the personal interest
of the lawyer can result in a
concurrent conflict of interest).
26. Id. Rule 8. 4 cmt. 4.
27. Id. Rule 8. 4 cmt. 5.
28. Twenty-four U.S. jurisdictions
have some type of antidiscrimination rule in their rules of
professional conduct for lawyers. Habte, supra note 5.
29. Petition to Amend ER 8. 4, Rule
42, ARIZ.R.S.CT., June 16,
2010 (No. R-10-0031), www.
azcourts.gov/Rules-Forum/aft/
281 (last visited Dec. 5, 2016).
30. See Public Comments on
Petition to Amend ER 8. 4,
Rule 42, ARIZ.R.S.CT., www.
azcourts.gov/Rules-Forum/aft/
281 (last visited Dec. 5, 2016).
31. Motion to Withdraw Petition
to Amend ER 8. 4, Rule 42,
ARIZ.R.S.CT., Dec. 20, 2011,
www.azcourts.gov/Rules-
Forum/aft/281 (last visited
Dec. 5, 2016).
ment [ 3] into the Rule itself, given that the
proposed amendment only prohibited discriminatory conduct when prejudicial to
the administration of justice. Nonetheless,
the proposal was met with criticism similar in nature to that of the opponents to
the ABA’s originally proposed Model Rule
8. 4(g). 30 On December 20, 2011, the State
Bar withdrew the petition to allow the
Board of Governors to study the issue further. 31
The enactment of Model Rule 8. 4(g) by
an overwhelming majority of ABA delegates
will likely stimulate further consideration of
an amendment to ER 8. 4. Now that the
ABA has crafted language in the Rule and
Comments that was able to quell the Rule’s
opposition, proponents of an amended Ari-
zona ER 8. 4 will have guidance in drafting a
proposed amendment that addresses the
concerns of Arizona lawyers.
Conclusion
Going back to the opening scenario, how
would you advise the associate?
If you were to apply the Model Rules,
the partner’s offensive joke would clearly be
prohibited by Rule 8. 4(g). Comment [ 4]
Whether Arizona’s ethical rules are
amended to mirror the Model Rules remains
to be seen. In the meantime, lawyers are ad-
vised to be mindful of their existing obliga-
tions under ER 8. 4 and Rule 41(g) of the
Arizona Rules of the Supreme Court.
Rooting Out Bias in the Legal Profession
