Update on racial insensitivity within the practice of law.

It still exists, of course. No real surprises there.

In just the last two weeks, there have been multiple stories that drive that point home. One such story, while admittedly actually involving a sitting judge rather than a practicing lawyer, is this one out of Colorado. Another such story involves a New York lawyer who was serving both as General Counsel to her employer and as an adjunct law school professor and has now lost her GC position over multiple uses of the same racial epithet the Colorado judge explored during a lecture in her professor position. There are other examples just occurring over the last few months that are readily found through searching online.

While both the Colorado judge, and the New York lawyer, have found themselves on the outs with respect to their employment status, the resolution of the individual judge’s situation and how it came about through judicial ethics proceedings including a public censure and agreement to resign, is also a reminder that the judicial ethics rules already have broad enough language to address and resolve certain kinds of conduct involving sustained racial insensitivity in a way that the current lawyer ethics rules in many locales do not.

As readers of this space are well aware, there have been a variety of efforts in a variety of places over the last 5 years or so to try to remedy that. A few very recent noteworthy developments in the now long-running saga of the effort to enact better language into the ethics rules of various jurisdictions to tackle the problem of lawyers engaging in harassment and discriminatory conduct are worth mention.

My guess is the one that has the most potential for significant impact is a proposal out of New York. But, given the rapid state of overall developments, I need to be clear about which proposal out of New York. Not this proposal put out for public comment in March 2021 that would suggest replacing New York’s existing RPC 8.4(g) with the ABA Model Rule version. No, I’m talking about this one:

That proposal for a revised RPC 8.4(g) in New York was put out late last week for public comment by the New York State Bar Committee on Standards of Attorney Conduct. It has a comment deadline of May 28, 2021. The Chair of that Committee, Roy Simon, was kind enough to send me a copy of the proposal last weekend.

This one appears – from the backstory of which I have been made aware and despite the fact that it does not show all of its work as certain kinds of reports often do — to have been the product of a significant amount of time and effort, including efforts at trying to consensus-build. Early reactions I have seen involve some long-time vocal opponents of both the ABA Model Rule and some other states attempts at implementation seeming to take something of a shine to this proposal. Now, admittedly some of the reactions I’ve seen also involve the vocal opponents to other versions trying to argue that this version won’t actually mean what it purports to mean as to the scope of “conduct in the practice of law.” Specifically, it has already been argued that teaching of a CLE could not be conduct in the practice of law despite the fact that the rule itself would define “conduct in the practice of law” to include “participating in bar association, business, or professional activities or events in connection with the practice of law.”

For whatever reason, almost always the various “parade of horribles” hypotheticals offered about how these rules will curtail free speech by lawyers always involve the teaching of a CLE somewhere. It would seem to me that if you cannot manage to speak at a CLE without managing to violate at least this version of the rule (given the further bells and whistles described below), you should probably stick to being an audience member and not a presenter. But, whatever on that, I guess.

It appears that the most significant ways this proposed anti-discrimination and anti-harassment rule deviates from the ABA Model Rule are: (1) in using that turn of phrase regulating “conduct in the practice of law” rather than “conduct related to the practice of law;” (2) defining “harassment” for purposes of the rule to require something that is both “severe” or “pervasive” and that is directed at an “individual or specific individuals;” and (3) trying to go even further with respect to clarifying that definition of harassment in a comment that would explain:

[5C] Petty slights, minor indignities and discourteous conduct without more do not constitute harassment. Severe or pervasive derogatory or demeaning conduct refers to degrading, repulsive, abusive, and disdainful conduct. Verbal conduct includes written as well as oral communication.

I have long believed that we need to bolster the rules on this subject matter and if the NY proposal becomes something that can gain traction, then consider me to be all for it. (I would suggest, however, that the second sentence of proposed Comment [5C] would be better off with a disjunctive connector rather than a conjunctive connector so that it would say “degrading, repulsive, abusive, or disdainful conduct.” Surely something would not have to check all of those boxes to be prohibited.)

There also is another very recent proposal that appears to head down a path that is somewhat similar to the New York proposal, at least in terms of trying to address arguments made time and again by those who have voiced steadfast opposition to ABA Model Rule 8.4(g), by making clear that prohibited discrimination or harassment has to actually target some other specific person. The D.C. Bar Rules of Professional Conduct Review Committee has put out this lengthy report proposing that D.C. adopt a new RPC 8.4(h) that would also differ from Model Rule 8.4(g) in that it would specifically state that conduct to be prohibited must be directed at another person and that also attempts to offer more clarity about what is or is not within the scope of covered circumstances. harassment. The DC proposal rather than using either the “related to” language of the ABA Model Rule or an “conduct in the practice of law” language now proposed in New York, uses the language “with respect to the practice of law.” Unlike New York’s latest proposal, however, the D.C. report does not propose requiring something be “severe” or “pervasive” in order to amount to harassment. You can access the full D.C. report at the link below:

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