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January 17, 2016 Practice Points

ABA Committee Proposes New Model Rule of Professional Conduct

By Handel Destinvil

On December 22, 2015, the American Bar Association Standing Committee on Ethics and Professional Responsibility (Committee) shared the latest draft of a proposed amendment that would expand the definition of "professional misconduct" in Model Rule of Professional Conduct 8.4 to explicitly include harassment and discrimination.

The specific proposal would create a new Model Rule paragraph—8.4(g)—which would declaratively state that professional misconduct exists where, lawyers, "in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status." In its memorandum, the Committee noted that the proposed rule would create a broad provision "to prohibit harassing or discriminatory conduct 'related to the practice of law.'"

Such conduct is not presently sanctioned by any authoritative text in Rule 8.4 of the Model Rules of Professional Conduct. Instead, the Committee noted that "[i]n 1998, the ABA House of Delegates decided to add a Comment to Model Rule 8.4 to provide that it would be professional misconduct, 'prejudicial to the administration of justice,' if a lawyer 'knowingly manifests by words or conduct, bias or prejudice' against certain categories of persons, while 'in the course of representing a client.'"

The Committee explained that a number of stakeholders had noted that the Comment—Comment [3]—was as an inelegant means of addressing the issue of discrimination, as a Comment could not be the basis of professional sanction or discipline, and only constituted informational guidance for practitioners. Similarly, a number of stakeholders noted that limitation of the Comment to conduct "in the course of representing a client," provided no recourse for harassment or bias that arose in the workplace or other professional contexts.

In its December 22, 2015, memo, the ABA Standing Committee took into account a number of objections in this regard and stated that the proposed rule was important because the existing rules "make manifestations of bias or prejudice such as discrimination or harassment a separate and direct violation of the Model Rules"; a state of affairs at odds with a number of other codes of conduct of licensed professions, and that decreases trust in the legal profession.

The Committee has requested comment on the latest draft proposal, which updates an earlier draft released in July 2015. Written comments will be accepted until March 11, with a public hearing to be held in San Diego on February 7 to discuss the proposal. In particular, the Committee is seeking input on "whether proposed Rule 8.4(g) should be limited to conduct that occurs 'in the course of representing a client'—which, unlike 'conduct related to the practice of law,' would not cover the operation and management of a firm and thus not implicate workplace discrimination or harassment." Persons wishing to speak at the February 7 event in San Diego should register by sending an e-mail to [email protected] by January 29, 2016.

Keywords: minority trial lawyer, litigation, proposed model rules, harassment, discrimination

Handel Destinvil is assistant corporation counsel for the City of Newark Law Department in Newark, New Jersey.

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