Legal Ethics

Proposed revision of ABA model ethics rule to ban broad range of discrimination sparks controversy

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A proposed revision (PDF) to one of the ABA Model Rules of Professional Conduct would expressly bar lawyers from bias in practice-related matters. The types of discrimination barred by the proposed rule cover more classes of people than some state laws currently protect.

While some members of the profession welcome the draft revision, others are concerned that it may go too far in restricting attorneys on matters of personal preference, conscience and religious belief, reports the Wall Street Journal (sub. req.).

The newspaper article doesn’t specifically identify the proposed ethics rule revision at issue or the ABA group that drafted it. However, the news story apparently refers to a proposed revision of current Model Rule 8.4 of the ABA Model Rules of Professional Conduct by the ABA Standing Committee on Ethics and Professional Responsibility.

The committee discussed proposed changes to the rule in a December memorandum. And, as the WSJ article notes, a committee web page about the amendments to Model Rule 8.4 has received hundreds of comments.

While the ABA’s ethics rules do not regulate the professional conduct of any of the nation’s lawyers, they are frequently adopted, in whole or in part, by the entities that oversee the legal ethics of attorneys within individual states. At that point, lawyers in those states are required to follow the local version of the rules.

Those who commented on the draft rule earlier this year at a hearing at the ABA’s Midyear Meeting in San Diego said it needed to be broader, the ABA Journal reported at the time.

However, commenters opposed to the revisions worried that they already place too great a burden on practitioners.

They include Professor Eugene Volokh of the UCLA School of Law, who is also well-known for his Volokh Conspiracy blog.

Pointing to the inclusion of “socioeconomic status” as a prohibited basis for discrimination in the draft rule, Volokh objects in his comment on the ABA committee page that a preference for hiring Ivy League graduates could fall afoul of the rule.

Prohibitions against discrimination “need to be implemented carefully and not overdone,” he told the newspaper. “It’s not one of those things where the more antidiscrimination, the better.”

Backers of the proposed revisions say such concerns are overblown.

“Lawyers are pathologically opposed to any interference with their own professional regulation,” Professor Deborah Rhode of Stanford Law School told the newspaper. “And the banner of personal liberty is unfurled every time someone proposes to subject lawyers to what’s forbidden in every other occupational context.”

In response to the comments, the committee provided a new draft revision of Model Rule 8.4 in April.

It would add to the current rule a new subparagraph that states: It is professional misconduct for a lawyer to … “(g) 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 December version did not include the second sentence.

To be adopted as part of the ABA Model Rules of Professional Conduct, the draft changes must be approved by the ABA’s House of Delegates at the ABA Annual Meeting in August.

Related coverage: “Workplace bias would be an ethics violation under proposed ABA model rule”

Updated on May 6 to clarify the draft revision currently under consideration and to reword the lead paragraph.

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