REVISED RESOLUTION 109 ADOPTED BY ABA HOD

On August 8, 2016 the ABA House of Delegates approved resolution 109 to amend Model Rule 8.4 to bring into the blackletter of the ABA Model Rules of Professional Conduct an anti-harassment and antidiscrimination provision.  

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REVISED HOD RESOLUTION 109 FILED AUGUST 3, 2016

In anticipation of the meeting of the House of Delegates on Monday, August 8, 2016, and in response to the thoughtful concerns that have been raised by ABA entities and others, the sponsors of House Resolution 109, which would amend Model Rule of Professional Conduct 8.4 to create new paragraph (g) and add new Comments, are filing a revised version with the Committee on Rules and Calendar.

In addition to being sponsored by the Association’s Standing Committee on Ethics and Professional Responsibility, Resolution 109 as revised is supported by the Standing Committee on Professional Discipline, the Standing Committee on Client Protection, the Standing Committee on Professionalism, and the Center for Professional Responsibility Diversity Committee.  We thank these Committees for their hard and thoughtful work on this important resolution.

The most important revisions are:

1.  A knowledge requirement has been incorporated. The proposed rule now prohibits conduct a lawyer “knows or reasonably should know” is harassment or discrimination.  This responds to concerns expressed by some regarding the scope of the prior proposal.  These two terms – “knows” and “reasonably should know” – are defined in the Model Rules, and this dual standard – “knows or reasonably should know” – is widely used throughout the Model Rules.  See Model Rules 1.13(f), 2.3(b), 2.4(b), 3.6(a), 4.3 and 4.4(b).

2.  Jury selection concerns have been directly addressed. The revisions also include inserting into new Comment [5] what some have called “The Batson Sentence” from current Comment [3] to Rule 8.4.  The sentence reads: “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.”

3. Moving the “legitimate advocacy” exception into the rule itself from the Comments, and expanding it to also cover “advice”. In addition, the “legitimate advocacy” exception has been moved into the black letter of the Rule.  It provides that new paragraph (g) does not preclude legitimate advice or advocacy consistent with these Rules.

4. Eliminating the “perceived” language.  The revisions include deleting from the definition of discrimination references to “membership” and “perceived membership” in one or more of the listed groups, as such language was unnecessary and some found it confusing.

A revised resolution can be found here. 

Below are a list of Co-Sponsors and Supporters of Resolution 109.

Below are a list of Co-Sponsors and Supporters of Resolution 109:

CO-SPONSORS

Standing Committee on Ethics and Professional Responsibility 
Section of Civil Rights & Social Justice
Commission on Diversity and Inclusion 360   
Commission on Disability Rights
Commission Sexual Orientation and Gender Identity
Commission on Women in the Profession
Commission on Racial and Ethnic Diversity in the Profession

SUPPORTERS GROUPS: ABA

CPR Diversity Committee
Coalition on Racial and Ethnic Justice
Center for Racial and Ethnic Diversity
Commission on Hispanic Legal Rights and Responsibilities
Council for Racial and Ethnic Diversity in the Educational Pipeline
Government and Public Sector Lawyers Division
Law Practice Division
Law Student Division
Section of Criminal Justice
Section of Dispute Resolution
Section of Labor and Employment Law
Section of Litigation
Section of Real Property, Trust and Estate Law
Section of State and Local Government Law
Section of Tort Trial and Insurance Practice
National Conference of the Administrative Law Judiciary
National Conference of State Trial Judges
Senior Lawyers Division
Special Committee on Hispanic Legal Rights and Responsibilities
Standing Committee on Client Protection
Standing Committee on Discipline
Standing Committee on Professionalism
Standing Committee on Specialization
Standing Committee on Legal Aid and Indigent Defense
Solo, Small Firm and General Practice Division
Young Lawyers Division

SUPPORTERS OUTSIDE ORGANIZATIONS

Association of Professional Responsibility Lawyers
Bar Association of San Francisco
Beverly Hills Bar Association
Center for Women in the Law
Chicago Bar Association
Equal Rights Advocates
Flex Time Lawyers
Legal Aid Society Employment Law Center
Ms. JD
New Jersey State Bar Association
National Affinity Bars:
    National Asian Pacific American Bar Association
    Hispanic National Bar Association
    National LGBT Bar Association
    National Native American Bar Association
    National Bar Association
National Association of Women Lawyers
National Conference of Women's Bar Associations
National Association of Women Judges
Santa Barbara Women Lawyers
South Asian Bar Association of North America

CURRENT ABA PRESIDENT

Paulette Brown, Morristown, NJ

SUPPORTERS:  FORMER ABA PRESIDENTS

Philip S Anderson, Little Rock, AR
Dennis Archer, Detroit, MI
Martha W Barnett, Tallahassee, FL
Laurel Bellows, Chicago IL
Talbot D’Alemberte, Tallahassee, FL
Michael S. Greco, Boston, MA
Robert J. Grey Jr, Richmond, VA
Robert Hirshon, Ann Arbor, MI
William C. Hubbard, Columbia, SC
Carolyn B. Lamm, Washington, DC
William H. Neukon, Seattle, WA
Roberta Cooper Ramo, Albuquerque, NM
James R. Silkenat, New York, NY