. Legal ethics

Revisiting the question of whether the ethics rules need revamping as to discrimination & harassment

So, quite a few months ago, I wrote about what (I think) was the first iteration of the proposed revision to RPC 8.4 to add a black-letter rule addressing discrimination and harassment.  My verdict at the time was one of skepticism that it made any sense at all to move workplace and employment discrimination issues to the ethics rules.

The proposal has now gone through several revisions and the end product — that will be put in front of the ABA House of Delegates in August 2016, is this Resolution.  The Resolution proposes the adoption of this new RPC 8.4(g), making it professional misconduct for a lawyer to:

harass or discriminate 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 Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The proposal also involves the adoption of two new comments, Cmt. [3], [4], and [5] that would provide as follows:

[3]  Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system.  Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others because of their membership or perceived membership in one or more of the groups listed in pragraph (g).  Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups.  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 anti-harassment statutes and case law may guide application of paragraph (g).

[4]  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.  Paragraph (g) does not prohibit conduct undertaken to promote diversity.

[5]  Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation.  A lawyer does not violate paragraph (g) 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.  Rule 1.5(a).  Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause.  See Rule 6.2(a), (b) and (c).  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).

I still have some misgivings about aspects of the proposal, but I will say that my view on it has largely come around and changed from where I was back when I first wrote about an earlier version of the proposal.  It does seem from the more I read about, and hear people debate these issues, there are still very significant workplace problems presented by the way lawyers treat other lawyers, as well as those that are not lawyers but must work with them on a day-to-day basis.  I will also admit that my view has changed on the need for that, in no small part, by watching events as they have played out on the national political stage and becoming very uncomfortable in hearing the rhetoric of those who are decrying this rule proposal as somehow fostering “political correctness,” sound eerily like one of our two presidential candidates, the one who seems to think it is appropriate to demean and vilify almost all who do not look like he does.  In a world in which there can be seemingly a third of the population as a whole that embraces such an approach to life, it seems the least that an organization like the ABA can do to advocate for this kind of additional protection from harassment and discrimination to be a part of its Model Rules.

The misgivings I still have are mostly with the language and meaning of new Comment [5].  By adding “that is material and relevant to factual or legal issues or arguments in a representation,” to modify “legitimate advocacy,” it makes me think the intent is that there could be “legitimate advocacy” of some other type.  I’m not sure there is, but if there is it should probably likewise be exempt and, thus, “legitimate advocacy” without further elaboration would seem to be the right language to use.

I also wonder whether this provision would truly mean the end — for example — of family law firms that market themselves as exclusively representing one gender or another in such proceedings.  I know what my thoughts are on what should be the correct result, but I have some trouble reconciling the proposed rule and the explanation in the Comment to determine how that item would be treated.

The entire report accompanying the resolution is available at that link provided above and it is worth a read.