September 2016 - By: Peter Geraghty, Director, ETHICSearch, ABA Center for Professional Responsibility -
After more than two years of intensive drafting and negotiation with entities, both from within and outside of the American Bar Association, the ABA Standing Committee on Ethics and Professional Responsibility’s (SCEPR) Resolution 109 regarding a new Rule 8.4(g) Misconduct was adopted on Aug. 8 by the ABA House of Delegates at the ABA Annual Meeting in San Francisco.
During the House deliberations, SCEPR Chair Myles Lynk delivered the report and Mark Johnson Roberts, chair of the ABA Commission on Sexual Orientation and Gender Identity; Wendi S. Lazar, of the ABA Commission on Women in the Profession; Don Bivens, of the ABA Section of Litigation; and Donald D. Slesnick, of the ABA Section of Labor and Employment Law, all rose to speak in favor of the amendment. No one spoke in opposition, and the rule was adopted by a voice vote. A video of the House proceedings is available, click here.
Currently, 25 jurisdictions have already adopted an anti-discrimination provision in their black letter Rules of Professional Conduct.
Calling these states a “laboratory” for the development and application of such rules, Lynk, in his comments to the House, stated that it was time for the ABA to adopt its own rule.
The rule, as adopted, reads as follows:
It is professional misconduct for a lawyer 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.
Paragraphs 3 through 5 of the Comment to the rule were also added.
This rule replaces paragraph  of the Comment to Rule 8.4, which read as follows:
 A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
One of the main reasons for moving the anti-discrimination provisions to the black letter of the rule from the Comment was because the comments to the rule are only guidance, it was felt there was a need for a black letter rule that would be enforceable in disciplinary proceedings. In the words of immediate past ABA President Paulette Brown,
“The current Model Rules of Professional Conduct (the “Model Rules”), however, do not yet reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation. The association should now correct this omission. It is in the public’s interest. It is in the profession’s interest. It makes it clear that discrimination, harassment, bias and prejudice do not belong in conduct related to the practice of law.”
Co-sponsors of the proposal to amend Model Rule 8.4, the Commissions on Women in the Profession, Disability Rights, Sexual Orientation and Gender Identity, Racial and Ethnic Diversity in the Profession, Diversity and Inclusion 360 Commission and the Civil Rights and Social Justice Section, argued that Comment  was too limited as it only addressed bias or prejudice when representing a client and only when prejudicial to the administration of justice. The new rule is broader in scope as it prohibits “harassment or discrimination …in conduct that is related to the practice of law.” As the new Comment  explains:
…Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.
The Ethics Committee began circulating preliminary discussion drafts of their proposal as early as July 2015, and in response to the numerous comments received made many modifications to the proposed rule and Comment in the days leading up to the Annual Meeting. All of the comments received by SCEPR on the Dec. 22, 2015, draft are available here.
Some of these modifications include adding a knowledge requirement to the rule. “Knowingly,” “Known” or “Knows” is defined Model Rule 1.0(f) Terminology, reasonably should know is also a defined term and both are used throughout the rules in varying contexts. The knowledge requirement would prevent unintentional violations of the rule. As the report states,
Taken together, these two standards provide a safeguard for lawyers against overaggressive prosecutions for conduct they could not have known was harassment or discrimination, as well as a safeguard against evasive defenses of conduct that any reasonable lawyer would have known is harassment or discrimination.
Language was also inserted into new paragraph  of the Comment stating that “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.” This sentence otherwise known as the “Batson Sentence” (Batson v. Kentucky, 476 U.S. 79 (1986) (while a defendant is not entitled to have a jury completely or partially composed of people of his own race, the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race.), was in the old Comment  to Rule 8.4.
Third, the phrase “legitimate advocacy” was moved from the Comment to the black letter rule, and the word “advice” was also added.
The full text of Rule 8.4 as amended is available, click here.