Legal ethics

Anti-discrimination v. anti-diversity

It has been a while since I have written anything here about ABA Model Rule 8.4(g) and efforts to adopt variations of it at the state level anywhere.

Part of why that is the case is that there hasn’t (to the best of my knowledge) been many developments of note to write about. Part of why that is the case is that it continues to be an exhausting topic because of the power and influence of the “anti-diversity” forces that have amassed in the legal sphere and the willingness of people who otherwise know the score when it comes to the agenda of those forces to act like they are operating in good faith when it comes to the way that they marshal First Amendment and other constitutional arguments to oppose any effort to address systemic racism in society.

But there is some news (that I consider to be of the positive variety even if you do not) worth writing about. Illinois, one of the largest states both generally and in population of lawyers, has amended its Rule 8.4 to add a provision focused on anti-discrimination and that is not limited only to when a lawyer is representing a client.

Effective July 1, 2024, Illinois Rule 8.4(j) will read as follows:

It is professional misconduct for a lawyer to:

(j) engage in conduct in the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, military or veteran status, pregnancy, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation. This paragraph does not preclude or limit the giving of advice, assistance, or advocacy consistent with these Rules.

The scope and focus of this rule are further explained in these new paragraphs to the Comment of the Illinois rule:

[3] Discrimination and harassment by lawyers in the practice of law in violation of paragraph (j) undermines confidence in the legal profession and the legal system. Conduct in the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others when representing clients; operating or managing a law firm or law practice; and participating in law-related professional activities or events, including law firm or bar association educational or social events. Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.

[3A] The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective. See Scope, paragraph [14]. Discrimination means harmful verbal or physical conduct directed at another person or group that manifests bias or prejudice on the basis of any characteristics identified in paragraph (j). Harassment includes conduct directed at another person or group that is invasive, pressuring, or intimidating in relation to any characteristic identified in paragraph (j). It includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and antiharassment statutes and caselaw may guide the application of paragraph (j) and the evaluation of whether specific conduct constitutes discrimination or harassment. In addition, any judicial or administrative tribunal findings involving the same conduct may be considered in assessing whether a lawyer has violated paragraph (j). A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (j).

[3B] Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating paragraph (j) by, for example, implementing initiatives to encourage recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations. A lawyer does not violate paragraph (j) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. See Rule 1.5(a). Lawyers should be mindful of their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

It will be interesting to see moving forward how much criticism gets lobbed Illinois’s way for the adoption of this rule and whether, as has been the case in a few jurisdictions, lawsuits are filed seeking to challenge it on First Amendment grounds. It is also noteworthy that the Illinois version of this rule explicitly explains that efforts at “promoting diversity and inclusion” are not violative of the rule.

Speaking of such topics, I remain of course strongly aware that nothing like this rule has any chance of being adopted in my home state of Tennessee anytime soon (and likely not during my lifetime). Rather, lawyers in Tennessee have to continue to endure and be embarrassed by the depressing priorities of our current Attorney General.

His latest effort is leading up this group of AGs to attack the ABA’s Standard regarding law schools and accreditation regarding diversity and inclusion. This, of course, is not a one-off example of Mr. Skrmetti leading his office into the fray on behalf of right-wing causes celeb. It is only the latest along with his others like this and this and this and this and this.