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.
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.”
The committee explained in Formal Opinion 493 that while the rule “does not regulate conduct unconnected with the practice of law,” “it does impose a higher standard on lawyers than expected of the general public.” According to the committee, this is intended to promote confidence in the legal system and the legal profession. Because prohibited conduct “occurs outside of court-related and representational situations,” the rule also applies to conduct “in practice-related settings beyond the courtroom and in contexts that may not be connected to a specific client representation.” For example, activities subject to the rule include “participat[ion] in bar association, business or social activities in connection with the practice of law.”
Opinion 493 also makes clear that Rule 8.4(g) “prohibits conduct that is not covered by other law, such as federal proscriptions on discrimination and harassment in the workplace.” The committee explained that while violations of federal employment law would also implicate the rule, the converse may not be true.
To illustrate this point, the committee gave the following example: “a single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of law would likely not be severe or pervasive enough to violate Title VII [of the Civil Rights Act], but would violate Rule 8.4(g).” Thus, an isolated act of harassment or discrimination does not insulate an attorney from the reach of the rule, though it may be relevant to the severity of the violation, or be considered as a mitigating factor in a disciplinary proceeding.
The rule has been the subject of First Amendment challenges. To address those constitutional concerns, the committee stated, “The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law.” It explained that two constitutional principles constrained its application: (1) “an ethical duty that can result in discipline must be sufficiently clear to give notice of the conduct that is required or forbidden”; and (2) “the rule must not be overbroad such that it sweeps within its prohibition conduct that the law protects.” It further observed that states traditionally have a legitimate interest regulating attorney conduct.
In support of its position, the committee enumerated other broadly worded ethics rules that had withstood First Amendment lawsuits. It also listed several “representative” hypotheticals to illustrate the types of conduct that are permissible or impermissible under the rule.
However, at least one court has blocked application of the rule. In Greenberg v. Haggerty, the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction to prevent Pennsylvania Rule of Professional Conduct 8.4(g) from taking effect on December 8, 2020, as scheduled. The court concluded that Rule 8.4(g) constituted “unconstitutional viewpoint discrimination in violation of the First Amendment” because it only censored “offensive” words and “was without any concrete standards” as to “who or what offends.”
Section of Litigation leaders agree with the committee that the rule is constitutional as applied. “Formal Opinion 493 addresses the intent and effect of the Rule and helps explain how its broader language can be accomplished in a real setting,” opines Laura K. Lin, San Francisco, CA, cochair of the Section’s Ethics & Professionalism Committee. “The opinion assists those states that might be hesitant to adopt it by providing comfort surrounding what the rule actually looks like when applied,” she adds.
“As lawyers, we hold a privileged license to practice our profession,” offers Jimmy K. Goodman, Oklahoma City, OK, cochair of the Section’s Civil Rights Litigation Committee. “We should all stand ready to be called to account when we fail our oath or in our duties. As a strong First Amendment advocate, I find it a reasonable regulation for those who take the lawyer’s oath,” says Goodman.
Whether the opinion will be more widely adopted remains to be seen. For those jurisdictions that have already adopted a version of Rule 8.4(g), Opinion 493 offers comprehensive insight on the scope of the rule.
