December 23, 2020 Top Story

Ethics Opinion Clarifies Scope of Antidiscrimination Rule

Model Rule 8.4(g) has broader reach than federal employment laws

By Michael Stefanilo Jr.

Lawyers now have more clarity on the dos and don’ts under Model Rule of Professional Responsibility 8.4(g), which prohibits harassment or discrimination in the legal setting. In Formal Opinion 493, the ABA Standing Committee on Ethics and Professional Responsibility emphasized that while the rule covers conduct outside the practice of law, it does not limit an attorney’s free speech rights. ABA Section of Litigation leaders believe that the opinion will promote more widespread adoption of the rule by easing concerns over speech restrictions.

The opinion emphasized that Rule 8.4(g) does not limit an attorney's freedom of speech.

The opinion emphasized that Rule 8.4(g) does not limit an attorney's freedom of speech.

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Rule Extends Beyond the Courtroom

Rule 8.4(g) provides that “[i]t is professional misconduct 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.” However, the rule also states that it does not limit an attorney’s ability to accept, decline, or withdraw from representation. Nor does it preclude “legitimate advice or advocacy.”

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