chevron-down Created with Sketch Beta.
March 12, 2021 Articles

Forbidding Sexual Harassment in the Practice of Law: Who Needs ABA Model Rule 8.4(g)?

While the debate about ABA Model Rule 8.4(g) continues, many state disciplinary authorities find that they already have the rules they need to regulate attorney misconduct when it involves sexual harassment.

By Terra Castillo Laughton

In August 2016, the American Bar Association (ABA) adopted ABA Model Rule 8.4(g).  The rule provides broad-ranging protections against discriminatory and harassing behavior by attorneys. In part, it forbids sexual harassment by lawyers, specifically: “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of, . . sex . . . in conduct related to the practice of law.”

To date, very few states have adopted Rule 8.4(g) rule in any form. That is likely because after its adoption, there was a firestorm of debate about whether it violated attorneys’ First Amendment rights. There is also a question about whether its attempt to regulate conduct “related to” the practice of law is overbroad—a concern that may be legitimate given Comment 4 to Rule 8.4(g) that defines such conduct to include bar, business, and social activities “in connection with” the practice of law.

In 2020, the ABA issued Ethics Opinion 493 in an effort to address these concerns; it is yet to be seen whether more states will adopt Rule 8.4(g) as a result.

But state disciplinary authorities need not wait for the adoption of 8.4(g) in their state to regulate sexual harassment by attorneys in the practice of law. While sexual harassment is just a small part of what is prohibited by Rule 8.4(g), it is important to know that even without adoption of 8.4(g), most state’s disciplinary authorities already have the tools they need to sanction attorneys for sexual harassment. 

Some States Address Sexual Harassment with Rules That Specifically Forbid Such Conduct

For example, in the 2015 decision in Attorney Disciplinary Bd. v. Moothart, the Supreme Court of Iowa suspended an attorney for at least 30 months for sexually harassing multiple women, including clients and his legal secretary. Among other things, the attorney had asked several women to show him their breasts, made crude sexual comments to them, asked an 18-year-old client to “hang out in a hot tub,” paid a client for oral sex, had sex with another client multiple times in hotel rooms he paid for, offered his secretary $20 to dance naked on the conference room table, and grabbed the secretary’s breast in a car on the way to court.

The court considered the scope of the Iowa Rule of Professional Conduct then in effect that prohibited sexual harassment “in the practice of law.” In applying the rule, the court noted that this phrase was “quite broad,” and extended beyond attorney-client relationships to include sexual harassment of witnesses, court personnel, law-office employees, or other third parties that “come into contact with a lawyer engaged in the practice of law.”

Vermont adopted Model Rule 8.4(g) in 2017 and was the first state to do so. But even before its adoption of 8.4(g), its rules specifically prohibited sex discrimination in certain contexts.

In In re Robinson, the Vermont Supreme Court disbarred an attorney who had sexually harassed his administrative assistant by tossing paperclips at her cleavage and masturbating in her presence after asking her to unbutton her shirt. The attorney had also requested that his assistant sign a contract indicating that their relationship was consensual and waiving any future claims against him. Applying a version of Rule 8.4(g) that predated adoption of the model rule, the Vermont Supreme Court agreed with the Professional Responsibility Board’s determination that the attorney had created a hostile work environment and that the consent agreement constituted quid pro quo harassment.

Other States Discipline Attorneys for Sexual Harassment under Disciplinary Rules Prohibiting a Wide Range of Attorney Misconduct

States that do not have specific rules prohibiting sexual harassment have used rules broadly forbidding “misconduct” to discipline attorneys in these kinds of situations. These “catchall” provisions are frequently modeled after Rule 8.4 (Misconduct), which is found in section 8 of the ABA Model Rules entitled: “Maintaining the Integrity of the Profession.”

In 2018, the Supreme Court of Ohio in Disciplinary Counsel v. Skolnick suspended an attorney from the practice of law for one year for sexually harassing his paralegal. The attorney had called his paralegal “dumb, fat, ‘whorey,’” “a ‘hoe,’” and “bitch.” He had also suggested that she and another female employee should give him “road head” while in the car on the way to lunch so that he could rate their performances on a scale from one to ten.

The court concluded that the attorney violated what it called the “catchall provision” of Ohio’s Rule of Professional Conduct 8.4(h) by engaging in conduct that “adversely reflected on his fitness to practice law” as prohibited by that rule. The court was not sympathetic to the attorney’s explanation that he had “learned the lingo from rappers and hip-hop artists while practicing entertainment law” and that he believed he was using the phrases in a humorous way.

Interestingly, the Board of Professional Conduct had charged the attorney under the “catchall” provision found in Rule 8.4(h), even though Ohio had its own version of 8.4(g) in place at the time that specifically prohibited an attorney from discriminating on the basis of gender. The opinion of the Ohio Supreme Court notes the attorney stipulated that his conduct adversely reflected upon his fitness to practice law, which may explain the charging decision.

Last year, the West Virginia Supreme Court of Appeals in Lawyer Disciplinary Bd. v. Hatfield used a disciplinary rule regulating attorney advertising to annul an attorney’s license. The attorney was sanctioned for calling a potential client on the phone at least eighteen times over seven days, asking for sex in exchange for legal services, and describing the sexual acts he wanted her to perform. The court held that the attorney violated West Virginia Rule of Professional Conduct 7.3(b)(2)—a rule traditionally used to regulate advertising that prohibits the solicitation of potential clients via coercion, duress, or harassment.

The court also used two provisions of its version of Rule 8.4 (entitled “Misconduct”). It concluded that the attorney violated Rules 8.4(b) and (d) by making unwelcome sexual advances in an attempt to establish a sexual relationship with a prospective client. The analysis of Rule 8.4(d) also required the court to assess whether the attorney’s behavior was “prejudicial to the administration of justice,” a requirement the court found easily satisfied.

Using Existing Rules to Maintain the Integrity of the Legal Profession

While the debate over ABA Model Rule 8.4(g) continues, most states already have disciplinary rules in place that can be a used to protect against sexual harassment by attorneys in connection with the practice of law. In many contexts, sexual harassment will also be a violation of state and federal law and may result in a criminal conviction, which usually brings with it an automatic disciplinary sanction. Regardless, disciplinary authorities should continue to maintain the integrity of the legal profession by using the tools they already have when an attorney engages in sexual harassment.

Terra Castillo Laughton is a litigation associate in the San Francisco, California, office of Munger, Tolles & Olson. 

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).