Ethics and Professional Responsibility
Bias, Discrimination and Harassment: Rules for Judges and Lawyers
By Jessica Ballard-Barnett
Those who were fortunate enough to snag a later flight out of Scottsdale on the final day of the 2022 Appellate Judges Education Institute (AJEI) Conference were treated with a thought-provoking ethics presentation. Professor Keith R. Fisher, Distinguished Fellow at the National Judicial College, focused his hourlong presentation on bias, discrimination, and harassment as they relate to judicial and attorney ethical rules. One would think this would all be review of well-known rules, and that in 2022, racial slurs and inappropriate sexual behavior had long been banished from the courtroom. Unfortunately, that is not the case.
To put the audience in the appropriate mindset, Professor Fisher asked everyone to consider a statement made by an employer to his employee in the United States Supreme Court case Faragher v. City of Boca Raton, 524 U.S. 775 (1998), “Date me or clean the toilets for a year.” Following a few giggles from the room, Professor Fisher then asked everyone to consider what would happen if a judge made the same comment. And thus began the foray into what ethical rules governing judges and attorneys say, and what they do not say.
To discuss the language of the relevant ethical rules, Professor Fisher used ABA Model Code of Judicial Conduct (MCJC) Rule 2.3 and ABA Model Rules of Professional Conduct (MRPC) Rule 8.4(g). He noted the judicial rule served as a template for the attorney rule, but they are not the same in many important ways. For example, both rules list a number of classes against which prejudice, whether it be in the form of bias, discrimination, or harassment, is forbidden. Most of the categories such as race, sex, religion, national origin, ethnicity, disability, age, and sexual orientation, track the suspect classes identified in several United States Supreme Court cases.
However, MCJC Rule 2.3(B) mentions “political affiliation” as an attribute against which judges may not show bias or prejudice. MCJC Rule 2.3(C) requires a judge to hold attorneys appearing before them to the same standard—including prohibiting harassment based on political affiliation. However, Professor Fisher noted MRPC Rule 8.4(g) does not include political affiliation, but does include gender identity as a suspect class against which harassment or discrimination is prohibited as part of conduct related to the practice of law.
Further adding to what may be incongruency amongst these rules is the language regarding the underlying reasoning for the actions they govern. The relevant MRPC rules include the language indicating a lawyer may not engage in conduct the lawyer “knows or reasonably should know” is harassment or discrimination based on the suspect classes, including gender identity. MRPC Rule 8.4(g). MCJC rules do not consider the mens rea of the actor, mandating a judge “shall not” engage in the prohibited behavior.
Finally, both the MCJC and the MRPC leave the interpretation of the rules open, giving disciplinary boards discretion in defining “bias,” “prejudice,” and “harassment.” This ambiguity may be a double-edged sword. It gives discretion to disciplinary boards to determine whether a judge or attorney has engaged in bias, prejudice, and/or harassment based on the specific facts of the case. At the same time, it makes unclear the behavior prohibited in a specific situation.
Professor Fisher then moved on to the language concerning those actions taken by judges and attorneys which may run afoul of the rules. He noted comments to MCJC Rule 2.3(B) indicate that bias, prejudice, discrimination and harassment can manifest as words or conduct. These words and conduct include, among other things, slurs, demeaning nicknames, attempted humor based on stereotypes, suggestions of connections between the characteristic and crime, and irrelevant references to personal characteristics. These are likely familiar examples. Less obvious manifestations of prohibited behavior under the rules include facial expressions and body language. These behaviors are unacceptable from the bench—and hopefully unacceptable as part of daily interaction outside of the courtroom.
Regarding attorney behavior that may not obviously violate the MRPC, Professor Fisher explained, based on the comments to MRPC Rule 8.4(g), what “conduct related to the practice of law” means outside of doing the things lawyers do—representing clients, filing motions and the like. For example, attorneys may not engage in harassment or discrimination when they are interacting with witnesses, operating or managing a law practice, participating in a bar association, and engaging in business or work-related social activities. In short, this conduct is not solely related to actions taken in a traditional legal capacity—it includes conduct an attorney engages in as part of society more broadly.
Professor Fisher would later note the language of MCJC Rule 2.15 and MRPC Rule 8.13. Both state that a judicial actor, whether it be a judge or attorney, is bound by the relevant ethical rules to inform the appropriate professional authority of an instance of misconduct of another judicial actor. While the duty to report misconduct by a judge is absolute, an alleged violation of MRPC Rule 8.4(g) must “raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” MRPC Rule 8.13(a). The comment to Rule 8.13 indicates that judging “fitness as a lawyer” does not consider all illegal activity, though offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice, or the pattern of repeated illegal activity, whether within that list or not, may call into question a lawyer’s fitness. Similarly, those actions deemed morally offensive, such as adultery, are not related to a lawyer’s fitness, presumably unless they involve “conduct related to the practice of law.”