Early last week, the American Bar Association (“ABA”) House of Delegates passed an amendment to the Model Rules of Professional Conduct prohibiting lawyers from engaging in any harassment or discrimination as it relates to the practice of law. The amendment’s passage comes after months of debate, comment, and revision. Revised Resolution 109 passed the ABA House of Delegates by a voice vote and without any dissenting comments from the house floor. The newly adopted version of the rule is reflective of an amendment introduced last month that changed the standard for finding misconduct from a strict liability standard to a “knows or reasonably should know” standard.
ABA Model Rule 8.4(g)
Under the newly amended Model Rule 8.4(g), it is misconduct to:
(g) engage in conduct that the 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
While the amended rule prohibits harassment and discrimination, Comment 5 to the rule keeps in place language from the former rule that has been dubbed “The Batson Sentence.” That sentence explains that a “trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.”
Twenty States Already Have Similar Anti-Discrimination Rules, Utah is Not Among Them
Approximately twenty states have already enacted similar ethical rules addressing the subject matter of Model Rule 8.4(g); however, Utah is not one of those states. Because the Model Rules are not binding on any jurisdictions, and states are free to adopt, revise, or reject those rules, it will be intriguing to see whether and how many states adopt the ABA’s version of Model Rule 8.4(g).
Model Rule 8.4(g) Not Without its Detractors
In its march to passage the amended rule drew much attention, some positive, and some negative. The ABA Standing Committee on Ethics and Professional Responsibility issued a draft proposal to amend Model Rule 8.4 last December. At that time, a number of attorneys weighed in in favor of the amendment’s adoption. Since that time, the amendment has also attracted several naysayers, including Alabama Supreme Court Chief Justice Roy Moore, who said in a comment letter that “the proposed rule will relegate attorneys with traditional religious views to either self-censorship or professional scorn.”
Similarly, former U.S. Attorney General Edwin Meese III said in his letter to the ABA that the proposed rule “boarders on fascism” and threatened “freedom, justice, and religious liberty.” Other opponents of the proposed rule raised concerns with the breadth of the discrimination the rule seeks to protect—related to race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status—which they said goes further than many state discrimination laws.
Proponents of the Rule Said its Passage was Long Overdue
Even though the amendment has had its detractors, ultimately the proponents of the amendment were victorious. “The states have not waited for the A.B.A. to act. They have been laboratories of change. It is time for the A.B.A. to catch up,” Myles Lynk, chair of the ABA’s ethics committee, said during debate over the rule last week.
Proponents of the proposed rule said that such a rule is long overdue and has been decades in the making. Supporters of the rule say that it makes clear that harassment and discrimination have no place in the legal industry, including in how law firms are run and how individual lawyers within those firms practice.
Zero ABA Delegates Signed Up to Speak Against the Rule During Last Week’s Debate
A potentially telling factor about the popularity of the newly passed amendment is that some 69 ABA members signed up to speak in favor of Resolution 109 as part of last week’s debate on the resolution, while zero signed up to speak in opposition. Among those to speak in favor of the rule was Mark Johnson Roberts Chair of the ABA Commission on Sexual Orientation and Gender Identity. Roberts told the delegates that he himself had faced discrimination in the legal industry when he was passed over by a law firm hiring committee as a new lawyer 28 years ago because he is gay.
Roberts focused his comments on a story about a young, female colleague who was groped by an older male opposing counsel at a holiday party, and that after she fled the scene, the man followed her and asked “in the crudest possible terms” about what sexual activity she might be planning with her husband that night. What is worse Roberts said, is that once the woman went to her local bar association to file a complaint she found out the man’s behavior violated no ethics rule—unless he had been convicted of a crime. Despite concerns that she’d never work in her field again if she prosecuted, Roberts said, she filed a police report. “Now the opposing counsel has a criminal conviction,” said Roberts. “So be careful what you wish for when you say [victims] should pursue criminal remedies first.”
Supporters of Model Rule 8.4(g)’s Passage Share Stories of Harassment and Discrimination
Wendi Lazar, a member of the ABA Commission on Women in the Profession and a plaintiffs’ employment lawyer, who has represented a number of female lawyers in sexual harassment cases, also spoke out in favor of the rule.
Lazar told the House of Delegates and the other delegates in attendance, “I would like to share with you some of their stories, because they are invisible to many of you, and their suffering has for the most part been in silence,” Lazar stated. Lazar also said some of her clients were victims of “behaviors that are unspeakable.”
“My clients have had male colleagues expose themselves in conference rooms, grope them in limousines after a hard day in the office, and threaten them that if they would not have sex in the bathroom at a retreat, they would not be promoted to lead counsel in a litigation,” Lazar said. “These women need protection, and they need a remedy,” Lazar added. “Firms don’t want to punish their partners, and judges often are reluctant to police their own. So in the end there is no justice for victims of discrimination.”
ABA Litigation and Employment Law Sections Changed Their Mind on Model Rule 8.4(g)
In addition to Roberts and Lazar, two delegates from ABA sections that formerly opposed Resolution 109 set forth the reasons their sections had changed their minds about the rule. Don Bivens, a partner at Snell & Wilmer in Arizona, spoke on behalf of the ABA Litigation Section. Bivens said that the Litigation Section had a discussion with the Standing Committee on Ethics and Professional Responsibility about its concerns over Resolution 109, which centered on potential penalties for vigorous representation of clients. In response to the concerns of the Litigation Section, Bivens said the committee agreed to add provisions to the rule that stated it was misconduct only if the lawyer knows or reasonably should know it constitutes harassment or discrimination, and explicitly does not preclude legal advice, particularly in regard to otherwise legal behavior in jury selection.
Don Slesnick, a delegate from the ABA Labor and Employment Law Section, noted that his section rarely speaks on the House of Delegates floor because his section requires unanimity, a difficult task for a section that includes employer-side and employee-side labor lawyers. Resolution 109 created an unusual unanimity twice, Slesnick said, at first, because the section was wholly opposed. But the Standing Committee was so responsive to their concerns, he said, that the section managed to reach unanimity a second time—in favor. “We hereby express that support with all our heart and soul,” said Slesnick, also a former mayor of Coral Gables, Florida, and former chair of the Fellows of the American Bar Foundation.
Will Utah Adopt its Own Rule 8.4(g)?
As noted, only twenty states have adopted ethical rules similar to Model Rule 8.4(g). Utah is not among those states. It will be interesting to see whether the passage of Model Rule 8.4(g) prods Utah in that direction, or whether the reasons offered against the ABA rule’s passage will stymie efforts to ban discrimination in the legal field in Utah.
