New formal ethics opinion gives additional guidance on harassment and discrimination

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The ABA Standing Committee on Ethics and Professional Responsibility released additional guidance Wednesday on the application of Rule 8.4(g) of the ABA Model Rules of Professional Conduct. This rule prohibits discrimination and harassment on the basis of race, sex, religion, national orientation and sexual orientation by lawyers in “conduct related to the practice of law.”

One of the most debated rules of professional conduct in recent memory, 8.4(g) arose largely because of the prevalence of sexual harassment in law and legal-related functions. The change to the model rule was adopted by the ABA House of Delegates in 2016.

According to Formal Ethics Opinion 493, the rule must be assessed using a standard of objective reasonableness and applies to conduct that the lawyer knows or reasonably should know constitutes harassment or discrimination. Only conduct found harmful is grounds for discipline. Conduct can violate the rule even if it is not severe or pervasive, the traditional standard in employment discrimination law. However, if the harassing or discriminatory conduct is an isolated incident, that can be a mitigating factor in disciplinary proceedings.

The opinion elaborates on the meaning of both harassment and discrimination. Harassment, the opinion reads, “refers to conduct that is aggressively invasive, pressuring, or intimidating.” Discrimination includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”

The opinion notes that “two important constitutional principles guide and constrain [Rule 8.4(g)’s] application.” These include concerns over vagueness and overbreadth—that the rule must be sufficiently clear and that it not sweep too far within its reach to bar protected speech or conduct. “Courts have consistently upheld professional conduct rules similar to Rule 8.4(g) against First Amendment challenge,” the opinion notes.

The ethics opinion provides five hypotheticals to illustrate the scope and application of the rule. The following three examples would not constitute a violation of 8.4(g):

• A lawyer would not violate 8.4(g) by representing a religious organization that challenges on First Amendment grounds a rule requiring schools to provide gender-neutral facilities.

• The lawyer could also be a member of a religious legal organization that advocated for the right of a private employer to fire or refuse to hire people based on their sexual orientation or gender identity.

• The rule would not prohibit a CLE speaker from asserting viewpoints about affirmative-action programs in higher education.

However, the following two examples would be violations:

• A lawyer serving as an adjunct professor in a law school clinic would violate 8.4(g) by making comments of a sexual nature to students.

• A lawyer also would violate 8.4(g) by making discriminatory remarks about Muslims to another lawyer in a planning session for an orientation program for new associates.

The opinion concludes by emphasizing the importance of the rule: “Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”

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ABA Journal: “States split on new ABA Model Rule limiting harassing or discriminatory conduct” “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment” “Second state adopts ABA model rule barring discrimination and harassment by lawyers” “Discrimination and harassment will be legal ethics violations under ABA model rule”

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