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. 

Premium Content For:
  • Litigation Section
Join - Now