Proposed rule that makes workplace bias an ethics violation not going far enough, ABA president says
The efforts of the ABA Standing Committee on Ethics and Professional Responsibility to add provisions that would make it misconduct for lawyers to knowingly discriminate or engage in harassment in conduct related to the practice of law received generally positive reviews from about a dozen speakers who testified at a public hearing Sunday afternoon during the association’s 2016 ABA Midyear Meeting in San Diego.
But the reviews weren’t all glowing. Nearly every speaker—including ABA President Paulette Brown—urged the committee to make further changes in its proposal to give it even broader effect.
The ethics committee, which has primary responsibility for revising and interpreting the ABA Model Rules of Professional Conduct, issued its draft proposal to amend Model Rule 8.4 on Dec. 22. In addition to scheduling Sunday’s public hearing, the committee will accept written comments through March 11. The committee plans to submit a final proposal for consideration by the House of Delegates when it convenes in August during the ABA Annual Meeting in San Francisco.
In its current form, Model Rule 8.4 addresses bias or prejudice in a comment to the black-letter rule. The comment states that: “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status,” is in violation of the rule “when such actions are prejudicial to the administration of justice.” The comment was adopted by the House of Delegates in 1998 as a compromise after some six years of discussion about the issue.
But the language has raised concerns for a number of ABA entities because comments may not be enforced in the same way as black-letter rules and because the language is not broad enough to adequately address discriminatory behavior by lawyers in the context of law practice.
“By addressing this issue in a comment, however, the compromise did not make manifestations of bias or prejudice such as discrimination or harassment a separate and direct violation of the Model Rules,” states a memorandum (PDF) issued by the ethics committee accompanying its proposed amendments. “This is because statements in the comments are not authoritative. … Thus, for many, the ABA has not addressed this issue squarely, in the authoritative manner it would be if it were addressed in the text of a Model Rule.”
The committee’s proposal to amend Model Rule 8.4 “moves beyond the comment to craft a distinct rule within the black letter of the Model Rules of Professional Conduct prohibiting lawyers from engaging in harassment and knowing discrimination in conduct related to the practice of law” against people on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. A revised comment states that the prohibition would apply “to conduct related to a lawyer’s practice of law, including the operation and management of a law firm or practice.”
The ethics committee’s review of Model Rule 8.4 was prompted by a letter it received in May 2014 by the ABA’s Goal III commissions: the Commission on Women in the Profession; the Center for Racial and Ethnic Diversity; the Commission on Disability Rights; and the Commission on Sexual Orientation and Gender Identity. (Goal III states the ABA’s commitment to eliminating bias and achieving equality.) In the letter, those commissions urged the committee to consider amending the Model Rules to address issues of harassment and discrimination more effectively.
It was primarily representatives of those commissions who the ethics committee heard from at Sunday’s public hearing, and the consensus message was that the committee should give amended Rule 8.4 even more and sharper teeth.
Brown was first person to address the committee, and her comments set the tone for those that followed. She praised the committee for its efforts to strengthen Model Rule 8.4. “A prohibition against discrimination and harassment must be in the body of the Model Rules, and not just in a comment,” she said. “A prohibition against discrimination must be the rule.”
But Brown said the proposed amendments don’t go far enough. One problem, she said, is that applying the prohibition to lawyers who “knowingly” discriminate may undercut its application in many cases. “Some have objected to the inclusion of ‘knowingly,’ ” she said, “and I’m troubled by its inclusion in the rule.”
Brown also urged the committee to add gender expression to the list of groups that would be protected from harassment or discrimination under the amended rule.
Other speakers who echoed Brown’s concerns also said the proposed amendments fail to define the “practice of law” in a way that would encompass incidents of harassment or discrimination in the context of nonprofessional activities at law firms, such as receptions, dinners and other informal social events.
These are the types of events where much of the harassment of or discrimination against female lawyers occurs, said several speakers. “The impediments to women of bringing discrimination claims against their firms to court are great,” said Wendi S. Lazar, a partner at Outten & Golden in New York City, who testified on behalf of the Commission on Women in the Profession. “Judges are loath for the most part to police their own profession, and women are often shunned for bringing such claims.” For that reason, she said, expanding the application of Model Rule 8.4 to social settings “is absolutely critical and crucial to retaining women in the profession.”
In closing comments, ethics committee chair and Arizona State University law professor Myles V. Lynk said: “This hearing has been very useful in helping us see the implications of the word choices that were made, and the comments will inform us as we give further consideration to the proposed language. This was something that wasn’t on our radar. But it clearly needs to be on our radar, and on the radar of the entire association.”
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