When does a Colorado lawyer's biased, discriminatory, or sexually harassing conduct violate the ethics rules, and how do Colorado's rules differ from the ABA's?

Plain-English summary

Opinion 145 maps the scope and application of Colorado's two anti-bias misconduct provisions, Colo. RPC 8.4(g) and 8.4(i), and explains how they differ from ABA Model Rule 8.4(g). Rule 8.4(g), the longstanding Colorado provision, makes it misconduct to engage "in the representation of a client" in conduct that "exhibits or is intended to appeal to or engender bias" on account of race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether directed at counsel, court personnel, witnesses, parties, or judges. Rule 8.4(i), added by the Colorado Supreme Court in 2019, makes it misconduct to engage in conduct the lawyer "knows or reasonably should know constitutes sexual harassment" where it occurs "in connection with the lawyer's professional activities." The opinion organizes the comparison around three differences: scope of application, required mental state, and triggering conduct.

On scope, the opinion concludes Rule 8.4(i) is broader than 8.4(g) because it is not limited to client representation; Comment 5A states that "professional activities" are not limited to those occurring in a client-lawyer relationship, so conduct at a firm committee meeting, evaluation, networking event, retreat, bar activity, or law-school setting can fall under 8.4(i) but generally not under 8.4(g). On mental state, the opinion reasons that because Rule 8.4(g)'s text does not use the word "knowledge" (the "knowingly manifests" language sits in Comment 3, not the rule), it is likely violated by recklessness; Rule 8.4(i)'s "reasonably should know" clause is likewise likely satisfied by recklessness, so both rules will probably be violated by a reckless state of mind. On triggering conduct, 8.4(g) reaches a broad list of bias categories while 8.4(i) targets sexual harassment specifically, and the opinion notes the two overlap where gender or sexual-orientation bias also constitutes sexual harassment.

The opinion then applies the rules to six hypotheticals, five of them borrowed from ABA Formal Op. 493, to show how Colorado's narrower rules reach different results than the ABA Model Rule. A lawyer representing a religious organization challenging a gender-neutral-restroom ordinance does not violate 8.4(g) because Comment 3 protects "legitimate advocacy." A lawyer's controversial CLE remarks on affirmative action violate neither rule, because a CLE is not "in the representation of a client" (so 8.4(g) does not apply) and the remarks are not sexual harassment (so 8.4(i) does not apply). A partner's anti-Muslim remarks during an associate-orientation planning session violate neither Colorado rule because they did not occur during client representation, a result the opinion expressly contrasts with ABA Model Rule 8.4(g), under which the same remarks would violate the rule. An adjunct professor's unwelcome sexual contact with a clinic student very likely violates 8.4(i) but probably not 8.4(g). The opinion also cites In re Abrams, 2021 CO 44, which upheld Colorado Rule 8.4(g) against First Amendment and overbreadth challenges and framed the test as whether a reasonable person of ordinary intelligence would find the conduct clearly proscribed.

In practice

Under this opinion, whether a Colorado lawyer's biased or harassing conduct is sanctionable turns on three questions the opinion identifies: was the conduct "in the representation of a client" (the gate for Rule 8.4(g)) or, more broadly, "in connection with the lawyer's professional activities" (the gate for Rule 8.4(i)); what was the lawyer's mental state (the opinion concludes recklessness likely suffices for both); and what was the actual word or conduct. The opinion holds that Rule 8.4(g) does not reach bias outside client representation, so conduct at firm or bar functions or in teaching settings is generally addressed, if at all, only by Rule 8.4(i) and only when it constitutes sexual harassment. It also holds that "legitimate advocacy" under Comment 3 is outside Rule 8.4(g), and that Colorado's rules are narrower than ABA Model Rule 8.4(g), so conduct that would violate the Model Rule may not violate either Colorado rule.

Common questions

Q: Does Colorado have a rule against discriminatory or harassing conduct by lawyers?

A: Yes, two. The opinion explains Colo. RPC 8.4(g) bars conduct that exhibits or is intended to appeal to or engender bias when done "in the representation of a client," and Colo. RPC 8.4(i), added in 2019, bars sexual harassment "in connection with the lawyer's professional activities."

Q: What is the difference between Rule 8.4(g) and Rule 8.4(i)?

A: Scope and subject. The opinion concludes 8.4(i) is broader because it reaches conduct beyond client representation (firm events, bar activities, teaching), while 8.4(g) is confined to client representation; 8.4(g) covers a wide list of bias categories, while 8.4(i) targets sexual harassment specifically. The two overlap where gender or sexual-orientation bias is also sexual harassment.

Q: How is Colorado's rule different from the ABA Model Rule 8.4(g)?

A: It is narrower. ABA Model Rule 8.4(g) reaches "conduct related to the practice of law," a phrase that appears in neither Colorado rule. The opinion's hypothetical of a partner's anti-Muslim remarks at an orientation planning session illustrates the gap: it would violate the broader ABA rule but neither Colorado rule, because it did not occur in client representation.

Q: What mental state does a violation require?

A: Likely recklessness. The opinion reasons that Rule 8.4(g)'s text lacks a "knowledge" requirement (so recklessness likely suffices) and that Rule 8.4(i)'s "reasonably should know" clause is also likely met by recklessness, while cautioning the standard could fall somewhere between recklessness and negligence.

Q: Does zealous advocacy on a contested social issue violate Rule 8.4(g)?

A: No, where it is legitimate advocacy. The opinion applies Comment 3's "legitimate advocacy" carve-out (which it reads consistently with the non-frivolousness standard of Rule 3.1) and concludes that representing a client on a contested gender-discrimination issue does not violate the rule, even if others disagree with the position.

Background and rules framework

The opinion interprets Colo. RPC 8.4(g) (bias in client representation) and 8.4(i) (sexual harassment in professional activities), with their Comments 3 and 5A, against ABA Model Rule 8.4(g) and its Comment 4. It uses the knowledge definition in Rule 1.0(f) and the "legitimate advocacy" limit read together with Rule 3.1, and relies on In re Abrams, 2021 CO 44, the Colorado Supreme Court decision upholding Rule 8.4(g). It expressly does not take a position on ABA Formal Op. 493, using that opinion's hypotheticals only to contrast the Colorado and Model rules.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 8.4(g) / aligned with prior ABA Model Rule 8.4 Comment 3 (bias in the representation of a client)
• Colo. RPC 8.4(i) (sexual harassment in connection with professional activities; Comment 5A)
• ABA Model Rule 8.4(g) (harassment and discrimination related to the practice of law; Comment 4)
• Colo. RPC 1.0(f) (definition of "knowingly"); Colo. RPC 3.1 (meritorious claims; legitimate-advocacy reference)

Cases:

• In re Abrams, 2021 CO 44, 488 P.3d 1043, upholding Colo. RPC 8.4(g) against First Amendment and overbreadth challenges
• People v. Rader, 822 P.2d 950 (Colo. 1992); People v. Small, 962 P.2d 258 (Colo. 1998), reckless state of mind and scienter
• People v. Eaton, 240 P.3d 1282 (Colo. PDJ 2010); People v. Beasley, 241 P.3d 548 (Colo. PDJ 2010)

Other opinions cited:

• ABA Formal Op. 493 (2020): Model Rule 8.4(g) purpose, scope, and application (source of the hypotheticals)

See also

• ABA Formal Op. 493: Model Rule 8.4(g) Harassment and Discrimination
• CBA Formal Op. 127: Social Media Investigation

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/11.4.22/Opinion 145 - Discrimination_ Bias(7184320.1)(7195410.1)-c.pdf