A proposed ABA Model Rule 8.4(g) has been put out for public comment.

The ABA Standing Committee on Ethics and Professional Responsibility (“SCEPR”) has put out a proposed new RPC 8.4(g) for public comment with a March 11, 2016 deadline for any written comments.  The proposed rule revision would add to the list of types of prohibited conduct in RPC 8.4 the following:

(g) in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.

Now, you might be asking yourself a number of things at this point.  The question that came to mind for me though was, aren’t there already other ethics rules sufficient to make harassing people for no good reason (including for discriminatory reasons) a disciplinary offense?  The answer to that question, I tend to think, is “yes.”  RPC 4.4 — which is entitled “Respect for the Rights of Third Persons” after all — prohibits a lawyer “in representing a client,” from “us[ing] means that have no substantial purpose other than to embarrass. . . or burden a third person.”  I would think that should already capture knowing sexual harassment or intentionally discriminatory conduct by a lawyer to an opposing party or opposing counsel or any other third party a lawyer has to deal with when representing a client.  Now I get that it wouldn’t capture anything a lawyer does when not representing a client, but that is when I would point to existing RPC 8.4(d) which prohibits engaging in conduct that is prejudicial to the administration of justice and does not limit its proscription only to when a lawyer is representing a client.  SCEPR clearly though does not see treatment of the issue through existing RPC 8.4(d) as sufficient.

Existing Comment [3] to RPC 8.4 provides:

[3]  A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status violated [RPC 8.4(d)] when such actions are prejudicial to the administration of justice.  Legitimate advocacy respecting the foregoing factors does not violate paragraph [d].

Now, setting aside the tautological circularity of the existing comment (which, of course, can be a bit “Well, other than that Mrs. Lincoln, how was the play?), current RPC 8.4(d) certainly brings something to the table over and above what RPC 4.4 would prohibit.  So, comparing the current comment with the new proposal, my next question was: why not just add “gender identity” and “marital status” to the list in the existing comment and be done with it? there must be some type of conduct not currently prohibited by the rules which is trying to be captured.

The answer to that is clearly that there is a specific type of conduct, and venue in which such conduct occurs, that is trying to be captured by RPC 8.4(g) as proposed.  The revision to Comment [3] offered by SCEPR spells out what the primary purpose of the change seems to be:  “Paragraph (g) applies to conduct related to a lawyer’s practice of law, including the operation and management of a law firm or law practice.”  So, workplace harassment and discrimination appears to be the motivation.

The rest of the proposed new comment language focuses a good bit on providing assurances that legitimate advocacy is still acceptable and that this provision won’t mean that you can’t claim a right of permissive withdrawal under RPC 1.16(b) if a client insists on doing something that the lawyer finds “repugnant” and turning down a potential client because they cannot pay you doesn’t mean you’ve discriminated on the basis of socioeconomic status.

That seems to me like an awful lot of assurances to have to provide in a comment about things a rule doesn’t prohibit.  I could get behind having to do that, I guess (even if it does seem weirdly defensive), if I was able to buy in to the need for the revision itself.  But, I just don’t quite understand how it makes sense to do the very thing this revision appears to be attempting to do — turn employment law issues into disciplinary matters.  Maybe I’m missing something.

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