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In the days of yore, lawyers were generally viewed as a socially “conservative” group not likely to seek attention or say controversial or unkind things in public. Those days are, of course, long gone. Today many lawyers go out of their way to say things that are intended to draw attention and address controversial topics. Those who like to speak on such matters need to consider when the things they say might cross ethical lines, including their local versions of Model Rule 8.4(g), which is designed to create a better legal environment, one free of harassment and discriminatory behavior. The Rule has many variations in jurisdictions across the country and though it has faced constitutional challenges and widespread controversy, it isn’t going anywhere. Lawyers need to be cognizant of and avoid the types of speech and behavior that violate this rule lest they find themselves in.  

ABA Model Rule 8.4 (g) says that it is misconduct for a lawyer to knowingly engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. 

The ABA amended the Model Rules to include this anti-discrimination provision back in 2016. But many states, Ohio for example, already had a version of this rule on their books years before the ABA adopted the model rule while others have adopted more expansive versions since. Likewise, there are several states that don’t prohibit discrimination directly within their ethics rules but proscribe such conduct in their comments to their ethics rules.  

Variations   

Unlike many of the Model Rules, virtually every state that has adopted a version of Model Rule 8.4(g) has varied the wording from that appearing in the ABA version. There are thus dozens of variations across the country. A few key aspects to look at when evaluating the application of the rule are (1) the context in which the conduct occurs and (2) the substantive conduct at issue. For instance, in many states the prohibition only applies to conduct in a lawyer’s professional capacity—using terminology such as “conduct related to the practice of law” or “conduct in connection with the practice of law.”  These definitions aren’t always fully explained, but one can envision arguments that such conduct transcends beyond that demonstrated in a courtroom and could be included to cover conduct at work or bar events too. The second aspect to evaluate is what the type of conduct and the subject matter covered by your state’s rule. For instance, your state may cover more than just comments of a sexual nature, but also those covering race, religion, national origin and more.

Model Rule 8.4(g) provides in part that “It is professional misconduct for a lawyer to 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.”

Ohio’s Rule 8.4(g) provides “It is professional misconduct for a lawyer to do any of the following: engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability”.

Iowa’s Rule 8.4(g) provides that “It is professional misconduct for a lawyer to engage in sexual harassment or other unlawful discrimination in the practice of law or knowingly permit staff or agents subject to the lawyer’s direction and control to do so.

New Mexico’s Rule 8.4(g) provides in part “It is professional misconduct for a lawyer to 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, or marital status in conduct related to the practice of law.

Examples

Formal Opinion 493 issued by the ABA Standing Committee on Ethics and Professional Responsibility provides several hypotheticals. This Opinion is a good read to determine what type of conduct is deemed “related to the practice of law” and what type of conduct is considered discriminatory or harassment. For instance, presenting at a CLE is “conduct related to the practice of law” as would be serving as an adjunct professor in a law school legal clinic. Yet, making comments about the type of colleges that individuals of a particular race should attend would somehow not be sufficient, without more, to violate the aspect of the rule pertaining to discrimination or harassment based on race. But the real-life examples will depend on the lawyer’s conduct and how it fits in with their particular state’s rule.  

Earlier this year, an Iowa lawyer was found to have violated Rule 8.4(g) for amongst other remarks, making sexually derogatory comments about certain defendants their office was prosecuting and making a joke with a sexual innuendo about his wife in front of office employees.

But even if your state does not have an 8.4(g) type of rule on the books, your conduct could still be an ethics violation.  Conduct that isn’t charged under Rule 8.4(g), can still easily fall into another category of Rule 8.4 Misconduct. Take for instance another disciplinary case recently issued out of New Mexico, where Rule 8.4(d) (“conduct that is prejudicial to the administration of justice”) was charged instead of Rule 8.4(g) despite the lawyer telling a prosecutor to “lay off the trendy feminist baloney.”

Takeaways

What you once may have classified as a funny joke, now may be deemed a Rule 8.4(g) violation in your state. These comments can be made at bar events, at work, in front of colleagues, to your clients, opposing counsel and more—so you always want to be careful what you are saying and to whom you are saying it. You may think you have a much friendlier relationship with someone that sees you as no more than a colleague and is offended by your comment or behavior. Times have and are continuing to change regarding what conduct is professionally, societally, and ethically acceptable. Looking at your state’s rules, opinions, and cases may save you not only from embarrassment, but from picking up a disciplinary case as well.

Greetings 2018!  Time for some ethics trend predictions to kick off the Year of the Dog (according to the Chinese zodiac).  Let it be a year in which you doggedly pursue ethical practice (ouch).  No more bad puns — here’s what’s hot as we begin the year:

Law firm cyber-security

No surprise here that the top trend is data security.  It’s one of the “chief concerns” of GC’s, and for good reason:  It’s not if, but when, a firm is going to experience a cyber-attack.  The latest ABA report says that 22 percent of law firms of all sizes were hit with a data breach in 2017, up from 14 percent in 2016; several of the biggest firms experienced attacks and various kinds of disruption in the past couple years.  But small and medium-size firms are just as vulnerable, say the data.  Of course, lawyers have an ethical duty under Model Rule 1.6(c) to take reasonable steps to safeguard the confidentiality of client data.  Ethics rules also require lawyers to have the technological competence to recognize and address the problem.  (See comment [8] to Rule 1.1.)  Trending:  More clients are insisting that firms establish data security policies and procedures.

The “Uber” effect – on-line service providers and other tech disruptors

Just as Uber disrupted an entire market segment with its ride-hailing model, on-line businesses like Avvo and LegalZoom have taken aim at legal services and how they are marketed.  But these on-line types of business raise legal ethics issues, including fee-splitting, handling client funds and professional independence.  (Excellent summary is here.)  Some innovative models, like the traffic-ticket-fighting site TIKD, are under fire for potential antitrust violations and the unauthorized practice of law.  And will consumers soon be taking their legal problems to chatbots?  Will legal teams soon be using artificial intelligence to analyze complaints and generate document drafts?  Trending:  State ethics regulators have come down against Avvo-like platforms, but they are still thriving.  How will the legal industry adapt?  (Hint:  Watch the progress of the ABA’s consideration of a revamp of the Model Rules on lawyer marketing and advertising, aimed at “bringing them into the 21st century” and reported here, in the Professional Responsibility Blog.)

Gender bias and sexual harassment in the profession

The ABA adopted Model Rule 8.4(g) in 2016, barring lawyers from engaging in harassing or discriminatory conduct; states are now considering whether to adopt the rule into their own lawyer conduct codes.  (Box score as of 8/1/17:  1 aye, 1 nay, many studying; and some commentators raise First Amendment concerns.)  But 40 percent of women in the profession report that they have been subjected to harassment and discrimination; and there have been several high-profile discrimination and pay-equity claims against prominent national firms and individuals.  The judiciary has been hit as well, with a prominent federal judge apologizing and retiring abruptly after sexual harassment allegations; and 695 law professors and former clerks are now petitioning Chief Justice John Roberts, seeking revision of judicial employee guides and support for reporting misconduct.  Trending:  Women in the profession are adding their voices to #metoo.

Lawyer health and wellness — mental and physical

Finally, we’d be remiss, in our first post of 2018, if we didn’t mention the personal aspect of lawyering:  keeping yourself safe and sane.  As a profession, more of us fight alcoholism, substance abuse, depression and anxiety than the general population, and those trends start developing in law school.  The statistics are alarming.  Trending:  a hopeful resolve, via a new, comprehensive ABA report, to come to grips with these systemic issues.  If you made a New Year’s resolution to stop drinking or drugging, or to address mental health issues that are affecting your legal practice, every state has a lawyer assistance organization to help you.  We’ve linked to the ABA’s state-by-state listing before; but here it is again.  If it helps one person, there’s no such thing as posting it too often.

Happy New Year.

 

scales of justice 3On 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.

ПечатьWe’ve all been there.  Opposing counsel has acted like a jerk throughout your case.  But now, counsel has crossed the line with conduct that you think is not merely uncooperative or dilatory, but also unethical.

Thinking of telling your opponent that you’re going to file a complaint with disciplinary authorities about that unethical conduct?  You should probably take some deep breaths and think again about that threat.  As a recent ethics opinion from the Association of the Bar of the City of New York (ABCNY) points out, making that threat may be unethical conduct on your part, if:

  • you are ethically required to actually report another lawyer’s misconduct, and you instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer; or
  • you lack a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule; or
  • your threat of disciplinary charges has no substantial purpose other than to embarrass or harm; or
  • your threat of disciplinary charges violates other substantive laws, such as criminal statutes that prohibit extortion.

No threats to gain leverage

Limiting threats in this way doesn’t mean that you have nothing to say to that troublesome opposing counsel, says the ABCNY committee.   You can confront opposing counsel with evidence of the misconduct, confirm whether she denies it or can explain it, and if appropriate, notify her as a courtesy that you intend to file disciplinary charges.  See Roy D. Simon, Threatening to File Grievance Against Opposing Counsel (cited by the ABCNY committee).

But “what the attorney may not do,” the committee explained, “is condition the handling of a mandatory grievance on compliance with a particular demand.”  So, even if you are convinced of the ethics violation, “it would be improper, in the words of Professor Simon, to ‘invit[e] the opposing lawyer to bargain away the grievance.'”

In other words, under this New York opinion you can’t use a disciplinary-charge threat in order to gain leverage for your client.  If the conduct is really an ethical violation, you must analyze whether you have a duty to report it under New York’s version of Model Rule 8.3(a), and if so, you must pull the trigger, not just make a threat.

Under Model Rule 8.3(a), if you know that “another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects,” you “shall” inform the proper authority.

Jurisdictions with express prohibitions

The New York Rules of Professional Conduct actually lack a direct rule on threats to file disciplinary complaints.  Therefore, the ABCNY ethics committee had to look to other ethics opinions and several other rules in order to reach its result, including NY Rules 3.1(b), 4.1(a) and 8.4(c).  (Likewise, the ABA Model Rules don’t address disciplinary-charge threats directly, although ABA Formal Ethics Op. 94-383 says that other rules “constrain” such threats.)

In contrast, other jurisdictions have express rules barring improper disciplinary-charge threats.  They include:  my home state of Ohio (ORPC 1.2(e)); Illinois (IRPC 8.4(g)); California (CRPC 5-100(A)); the District of Columbia (DCRPC 8.4(g)); Texas (TDRPC 4.04(b)); and Florida (FRPC 4-3.4(h)).

And lawyers have gotten themselves into disciplinary trouble by improperly threatening to bring disciplinary charges against another lawyer.  See, e.g., In re Pyle (Kan. 2004) (public censure for threatening to report opposing counsel to disciplinary agency unless settlement reached); Barrett v. Va. State Bar (Va. 2005) (threats to seek disbarment of party’s counsel if she did not withdraw violated Rule 3.4(i); remanded to determine sanction).

Think twice

The take-away:  check your jurisdiction’s own rules and ethics opinions (as always), and even without an express prohibition, you should think twice about threatening to bring a disciplinary charge against another lawyer — it just may backfire against you.

Social mediaA lawyer made an emotional appeal to a teen mother via Facebook message, begging her not to consent to her baby’s adoption.   The lawyer represented the baby’s biological father; the mother was not represented by counsel.  The lawyer’s conduct drew harsh criticism and a six-month suspension from practice when the Kansas Supreme Court considered it in In re Gamble, and the case highlights several ethics rules.

“You will live with this decision the rest of your life…”

The 18-year old mother in the case executed a consent to adopt shortly after the baby’s birth.  The father did not consent, and the court scheduled a hearing on the termination of the father’s parental rights and the adoption.  The week before the hearing, the lawyer deposed the mother, who had no legal counsel.  The mother testified that she became pregnant on her first date with the father, with whom she had no further relationship.  She remained resolute about her adoption decision during the pregnancy, the birth and during her deposition testimony.

Two days after the deposition, the lawyer sent the mother a lengthy private message through Facebook and attached a document  he drafted, purporting to be a “revocation [of] relinquishment of parental rights.”  In the message, the lawyer reiterated who he was, and that he represented the father.  The message included the statements that:

  • the adoptive parents were keeping the fact of the hearing from the mother and did not want her to attend (the opposite was true); 
  • if she signed “revocation,” the mother could undo her previous consent (not a possibility under Kansas statute);
  • it “was not too late” “to make things right,” and that the baby “deserves to know that you love her;”
  • the adoptive parents did not “legally have to ever let” her see the baby again; and
  • she should not forgo the opportunity to revoke the adoption “because you will live with this decision the rest of your life.”

“Prejudicial to the administration of justice”

The initial hearing panel found that the lawyer did not violate the state’s Rule 4.3, governing contact with an unrepresented person, and the state supreme court agreed.  The lawyer did not falsely state or imply that he was “disinterested,” which the rule prohibits; the mother knew at all times that he was representing an adverse party, the father.

But the lawyer’s Facebook message was misconduct under the state’s Rule  8.4(d), the panel and the supreme court said:  it was “prejudicial to the administration of justice” because the lawyer was attempting to manipulate the mother, who he knew did not want to revoke her consent.  And the lawyer also included false statements of material fact and law in the message, which the court found were made recklessly and negligently.

Adversely reflecting on fitness to practice

In addition, the court adopted the hearing panel’s finding that the lawyer violated the state’s Rule 8.4(g), making it misconduct for a lawyer to “engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”  The lawyer’s conduct amounted to “emotional blackmail” of an unrepresented 18-year old, the court said, when she was already dealing with a process that she testified was “emotionally exhausting.”  These were “bullying tactics” designed to “embarrass, burden, and create guilt,” reflecting adversely on the lawyer’s fitness to practice.

Effect of self-reporting under Rule 8.3

The professional conduct rules in a few states, such as Ohio, expressly require a lawyer to self-report the lawyer’s own professional misconduct.  Model Rule 8.3(a) does not — only certain misconduct of “another lawyer” is required to be reported.  The Kansas version of Rule 8.3(a) is more stringent than the ABA’s Model Rule, but does not expressly mandate self-reporting.  It provides that “A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.”

Cases in some jurisdictions (such as Louisiana and South Carolina) have considered self-reporting as a mitigating factor in imposing discipline for lawyer misconduct.  But in In re Gamble, the hearing panel discounted the lawyer’s self-reporting, because despite admitting the rule violations, he was not cooperative during the disciplinary process.

Not “no harm no foul”

The lawyer asserted that no one was injured by his conduct except himself, because the adoption had proceeded despite the emotional Facebook message he sent to the mother. The hearing panel and the court disagreed, finding “injury to the legal system, to the legal profession, to the biological mother [and] to the adoptive parents.”

Just don’t do it

In this case, a lawyer made  false representations of material fact and law to a vulnerable and unrepresented teenager.  Any such conduct — whether or not using social media, as this lawyer did — can result in disciplinary sanctions such as the court imposed here.