On March 9, in a thoughtful letter, the Chief Justice of the South Dakota Supreme Court announced that the Court denied a proposed amendment that was an alternative version of ABA Model Rule 8.4(g). Specifically, the letter to the South Dakota State Bar explained:

After carefully considering the submissions received from those on both sides of this issue, the Court has unanimously decided to deny the proposed amendment to Rule 8.4. The Court is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.

The Chief Justice further announced that a Commission would be appointed “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.” The Commission will consist of “justices, judges, lawyers, and others in the justice system.” It is to be named by April 15 and provide its report by the end of 2020. The Court appointed the Commission in response to a 2018 South Dakota State Bar survey that indicated that “20% of the respondents . . . had experienced some form of sexual harassment in the legal profession.” The Commission is “to study whether the current Rules provide the necessary framework to address” problems in underreporting of sexual harassment complaints or other related issues, and whether new rules are needed.  

The Chief Justice’s letter is the result of a public hearing held by the Court on February 11, 2020, regarding whether an alternative version of the deeply flawed ABA Model Rule 8.4(g) should be adopted. The South Dakota Bar had proposed the alternative version last year.

The Proposed Rule 8.4(g) would have made it professional misconduct for a South Dakota lawyer to:

(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a preemptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

In the three-and-a-half years since the ABA adopted Model Rule 8.4(g) in August 2016, only two states, Vermont and New Mexico, have adopted it, while Maine adopted a significantly modified version. At least thirteen states are known to have rejected, or abandoned efforts to adopt, a version of ABA Model Rule 8.4(g): Alaska, Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, North Dakota, South Carolina, South Dakota, Tennessee, and Texas.

Several helpful resources for understanding why lawyers should oppose adoption of ABA Model Rule 8.4(g) are available, including: