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.
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  what some have called “The Batson Sentence” from current Comment  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.