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Harassment and Discrimination Now Violate ABA Model Ethics Rules

By Amy Mattson, Litigation News Contributing Editor – December 6, 2016

The ABA has amended Model Rule of Professional Conduct 8.4 to specifically prohibit conduct "a lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The amendment does not, however, "preclude legitimate advice or advocacy."

The ABA resoundingly passed Resolution 109, which amended Model Rule 8.4, at the August ABA Annual Meeting in San Francisco. This change was more than 20 years in the making; Model Rule 8.4 was last reviewed by the ABA Standing Committee on Ethics and Professional Responsibility in 1995. Since then, 25 states have enacted ethical rule amendments addressing harassment and discrimination. "It was time for tune-up," observes Don Bivens, Phoenix, AZ, former chair of the ABA Section of Litigation.

Reasons behind the Model Rule's amendment may be less about sanctions and more about raising awareness and encouraging positive changes in behavior. "The amendments bring attention to the variety of ways in which unprofessional conduct has been taking place," according to Gregory R. Hanthorn, Atlanta, GA, cochair of the Section of Litigation's Federal Practice Task Force and former cochair of the Section's Ethics & Professionalism Committee. "I can't get inside the heads of the draftsmen and women, but I suspect they were looking at a fair number of ethics opinions that made it clear lawyers were casting disrespect upon the profession. The rule was changed to bring an appropriate focus to the need for civility," opines Hanthorn.

Alternative to Criminal Actions Against Lawyers
At the August 2016 ABA House of Delegates Meeting, proponents of the amendment presented to the delegates a story where a male lawyer physically harassed a young female lawyer. The female lawyer attempted to file a complaint with her local bar association, only to discover there were no rules prohibiting such conduct. Ultimately, she filed a police report. As a result, "the opposing counsel has a criminal conviction," says Mark Johnson Roberts, Portland, OR, chair of the ABA's Commission on Sexual Orientation and Gender Identity.

To some, criminal remedies helped get the amendment passed. "There was no clamor among state bar disciplinary counsels for adoption of this rule change, in part because egregious instances of misconduct already tend to result in harassment lawsuits and employment law claims," says Thomas Wilkinson Jr., Philadelphia, PA, the Section of Litigation's liaison to the CPR/SOC Professional Responsibility Committee.

Opposition to an Amended Model Rule
Wilkinson noted some ABA groups challenged the proposed resolution prior to a final revision that incorporated a mens rearequirement and a clear statement that the amended Model Rule 8.4 would not limit a lawyer's discretion whether to accept clients or advocate on their behalf. Some section leaders also anticipate pushback as states review the modifications to the Rule and decide whether they will adopt the new standards, says Bivens.

Another source of concern voiced by opponents is that the Amended Rule extends to any conduct "relating to the practice of law" rather than the more limited "in the course of representation of a client." Some objectors contend the words have a real potential to stifle free speech and debate by over extending the Model Rule's authority to viewpoints expressed, for example, at a CLE or during a hot-topic social conversation, a sporting event, or firm outing, explains Wilkinson.

Amended Model Rule 8.4 is intended, however, to give women, among others, a hammer to address potentially unlawful conduct and conduct that casts the profession in an inappropriate light, says Bivens. "You can go to any church. You can belong to any club you want to belong to. [The amended Model Rule] does not prohibit you from doing that. Is there a gray area? Yes, to some degree," Bivens says. But those involved in the revision process wanted to leave decisions about exactly what "relates the practice of law" to state regulators, Bivens explains.

Working New Provisions into Existing Frameworks
Admittedly "not everyone is going to agree with where the lines are drawn," notes Hanthorn, who describes the amended Model Rule as just one of many tools that may be used to address instances of harassment or discrimination. "The amendments are designed to be a statement that the profession takes its responsibility not to engage in this conduct very seriously," he observes, expressing hope the changes will have positive effects on professional conduct.

Still, some Section leaders anticipate continued future resistance. "Rubber may meet the road when this proposal goes to states where the lawyer composition and bar are more conservative in nature. "It could take years for states to cobble together some consensus and address the issue," says Wilkinson.

Keywords: ABA Model Rules, Resolution 109, harassment, discrimination

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