Legal Ethics

Workplace bias would be an ethics violation under proposed ABA model rule

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Corrected: A proposed amendment to the ABA Model Rules of Professional Conduct would make workplace discrimination an ethics violation.

The proposed Model Rule 8.4(g) would prohibit harassing or discriminatory conduct “related to the practice of law,” according to the ABA BNA Lawyers’ Manual on Professional Conduct. A comment to the proposed model rule says it would extend to conduct in the operation and management of a law firm or law practice.

But the rule “does not apply to conduct unrelated to the practice of law or conduct protected by the First Amendment,” according to the comment.

The proposal goes further than a comment added to Model Rule 8.4 in 1998, which said showing bias “in the course of representing a client” would amount to conduct prejudicial to the administration of justice.

The proposed model rule (PDF) reads: “It is professional misconduct for a lawyer to … in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

The types of discrimination that would be barred by the proposed model rule are an expansion of the protected categories listed in the 1998 comment. The new protected categories are ethnicity, gender identity and marital status.

The proposed black letter rule would be authoritative, while comments to the rules represent only guidance, according to a memo (PDF) on the draft proposal by the ABA Standing Committee on Ethics and Professional Responsibility.

The proposed model rule will be discussed at a public hearing on Feb. 7 at the ABA Midyear Meeting in San Diego. The ABA is seeking comment on the proposal, according to a press release.

Fifth paragraph corrected to add that the proposed model rule also would bar discrimination on the basis of disability. Last paragraph updated on Jan. 21 to state that the ABA is seeking comment on the proposal.

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