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ABA seeks comment on proposal to expand definition of professional misconduct

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ABA seeks comment on proposal to expand definition of professional misconduct

By John Glynn

CHICAGO, Jan. 21, 2016 — The American Bar Association Standing Committee on Ethics and Professional Responsibility is seeking comment on a draft proposal broadening ABA Model Rule 8.4 to make it misconduct for a lawyer to harass or knowingly discriminate against another based on that person’s race, sex, religion and other protected classes when the lawyer’s conduct is “related to a lawyer’s practice of law, including the operation and management of a law firm or law practice.”

Currently, Model Rule 8.4, which defines professional misconduct, stipulates only that words or actions of a lawyer “in the course of representing a client” would fall under this model rule and only when the lawyer’s action is also prejudicial to the administration of justice. ABA model rules serve as recommendations to state licensing agencies and cannot be enforced per se.

The committee’s proposal reflects the efforts of the ethics committee to examine how the Model Rules of Professional Conduct address discrimination and harassment by lawyers. The committee also has provided a memorandum explaining its position in hopes to further focus and advance discussion on the issues of harassment and discrimination related to the practice of law. In its memorandum, the committee notes that the last change in Model Rule 8.4 was in 1998, and that since then 24 jurisdictions “have crafted rules of professional conduct that in the black letter of their rules address bias, discrimination or harassing behavior by a lawyer.”

The committee plans a public hearing for Sunday, Feb. 7, from 3-5 p.m., at the ABA Midyear Meeting in San Diego. Those wishing to speak should register by sending an email to modelruleamend@americanbar.org by Jan. 29.  Written comments should be sent to modelruleamend@americanbar.org by March 11. A final proposal could be considered by the ABA House of Delegates at the association’s Annual Meeting in August in San Francisco.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. It is part of the
ABA Center for Professional Responsibility.

With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. Our privacy statement can be found online. Follow the latest ABA news at www.ambar.org/news and on Twitter @ABANews