On Monday, the ABA House of Delegates amended the Model Rules of Professional Conduct to add a provision barring harassment and discrimination in all conduct related to a lawyer’s practice of law. After months of debate, comment and revision, the revised Resolution 109 passed on a voice vote, without dissenting comment from the floor. The version adopted reflects an amendment introduced last month, which changed the requirement for a finding of misconduct from strict liability to a “knows or reasonably should know” standard.
Amended Model Rule 8.4(g)
As amended, Model Rule 8.4(g) makes it professional 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.
The revised rule retains in new Comment [5] existing language that some have called “The Batson Sentence.” The sentence clarifies 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 varying provisions in their lawyer conduct rules addressing the subject of Rule 8.4(g) in some manner. For instance, in my home state of Ohio, Rule 8.4(g) bars conduct “in a professional capacity” involving “discrimination prohibited by law,” but does not expressly touch on harassment. It also omits mention of gender identity, ethnicity and socioeconomic status.
Will the states follow?
The Model Rules, of course, are just that — they do not apply in any jurisdiction, and states are free to adopt, revise or ignore them. It will be interesting to see how the states without any express ethics rule against discrimination or harassment treat the new amendment. My friend Brian Faughnan, who blogs from Memphis TN, expressed skepticism about how quickly his own state “and the various bright red states around” him “will move to revise a version of RPC 8.4 not already prohibiting harassment and discrimination,” although he hopes to be proved wrong.
The anti-discrimination/harassment amendment drew opposition on its path to adoption, including from those who raised concerns that the language went too far in restricting attorneys on matters of personal preference, conscience and religious belief.
As it moved through the year-long adoption process, the proposed amendment also drew a long list of co-sponsors, including national affinity bars and many past ABA presidents, and numerous comments on the various drafts.