Some express concern that adopting Model Rule 8.4(g) will lead to false claims of misconduct based on discriminatory behavior. Of course, a similar argument can be made with regard to nearly any rule or law, and we do not generally avoid addressing an issue in society with an appropriate law because of some remote risk of false claims. Similarly, the potential for an occasional false claim under Rule 8.4(g), even assuming that is a valid concern, is not a sufficient justification for failing to address bias and the major lack of diversity in our profession.
“The supreme courts of the jurisdictions that have black letter rules with antidiscrimination and anti-harassment provisions have not seen a surge in complaints based on these provisions. Where appropriate, they are disciplining lawyers for discriminatory and harassing conduct.” (ABA Report to the House of Delegates, Page 6 of Report. See Footnote 15 on Page 6 of Report for examples of disciplined behavior.)
In addition, the burden of proof in a claim of misconduct falls on the disciplinary body bringing the claim. Procedures for determining professional responsibility violations are already in place under state rules and regularly applied to professional conduct claims.