Model Rule 8.4

BY: SKIP HARSCH

After more than two years of intensive drafting and negotiation with entities, both from within and outside of the American Bar Association, the ABA House Of Delegates voted overwhelmingly to make it an outright violation of the ABA Model Rules of Professional Conduct (MRPC) for a lawyer to engage in conduct “that the lawyer knows or reasonably should know is harassment or discrimination 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.”

The resolution, which amended the Model Rule 8.4, was sponsored by the ABA’s Standing Committee on Ethics and Professional Responsibility, the Section of Civil Rights and Social Justice, the Commission on Disability Rights, the Diversity & Inclusion 360 Commission, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Sexual Orientation and Gender Identity, and the Commission on Women in the Profession.

SOGI Chair Mark Johnson Roberts was the first to speak in favor of the Resolution. Mark mentioned that he was passed over by a law firm hiring committee as a new lawyer 28 years ago because he is gay. He focused his remarks, however, on a story about a young, female colleague who was groped by an older male opposing counsel at a holiday party. After she fled the scene, the man followed her and asked “in the crudest possible terms” about what sexual activity she might be planning with her husband that night.

The woman went to her bar association to file a complaint, only to discover that the man’s behavior violated no ethics rule—unless he had been convicted of a crime. Despite concerns that she’d never work in her field again if she prosecuted, Roberts said, she filed a police report.

“Now the opposing counsel has a criminal conviction,” said Roberts. “So be careful what you wish for when you say [victims] should pursue criminal remedies first.” Since the House adopted the amendments to Model Rule 8.4, the Policy Implementation Committee in the Center for Professional Responsibility has begun begin working with states to get the new version of the rule adopted. Currently, 25 jurisdictions have already adopted an anti-discrimination provision in their black letter Rules of Professional Conduct.

Adoption of the rule is currently being consider by the Illinois Supreme Court, the Montana Supreme Court, and the Disciplinary Board of Pennsylvania. However, there are still many who feel that this rule violates certain constitutional rights. New Hampshire refused to adopt subsection (d) of the ABA's earlier Model Rule 8.4 on the ground that it would violate attorneys' constitutionally protected freedoms, stating that "A lawyer's individual right of free speech and assembly should not be infringed by the New Hampshire Rules of Professional Conduct when the lawyer is not representing a client". It is unlikely they will consider the new rule any time soon.

And in Texas, a Lubbock state senator lobbied Attorney General Ken Paxton to issue an advisory opinion that adoption of the anti-discrimination rule could be used to target people "for elimination from the legal profession." In a letter issued on December 6th AG Paxton, unsurprisingly, agreed that the model rule infringes on First Amendment rights to freedom of speech, free exercise of religion and free association, he says, and a court would also likely conclude it is overly broad and void it for vagueness.

Broad adoption of rule Model Rule 8.4 is still up in the air. What is clear is that passage of the rule seems very timely in the legal climate where equal rights and freedom from discrimination are squarely pitted against free speech and freedom of religion.

The full text of Rule 8.4 as amended is available here.     

Skip Harsch

Director of SOGI