On April 9, 2016, the ABA Commission on Racial & Ethnic Diversity hosted a continuing legal education (CLE) program entitled “Pride and Prejudice and the Practice of Law: How Professional Conduct Rules and Newly Proposed Amendments to the Model Rules Deal with Professional Conduct” at the 2016 Spring Section Meeting & 11th Annual State & Local Procurement Symposium in San Juan, Puerto Rico. The program used a series of hypothetical situations to facilitate a discussion of the proposed amendment to Model Rule 8.4, as well as the current ABA Model Rules of Professional Conduct. Jo Ann Engelhardt, Hon. William Missouri, and Daiquiri Steele served as panelists, and Akira Heshiki moderated the panel. This was a highly interactive panel with a lot of interaction among panelists and participants.
August 31, 2016
Panel Discusses Professional Misconduct and Proposed Amendments to Model Rules
In 1998, the ABA added a Comment to Model Rule 8.4, stating that it would be professional misconduct for a lawyer to knowingly manifest “by words or conduct, bias or prejudice.” Because Comments to the Model Rules are not authoritative, such a manifestation of bias or prejudice would not be violation of the current Model Rules. On December 22, 2015, the ABA Standing Committee on Ethics and Professional Responsibility issued a draft proposal to amend Model Rule 8.4. At the time of the CLE, the draft proposed amendment would have added the following language to the Model Rule 8.4, making it professional misconduct for a lawyer to
(g) 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.
The proposal would add a prohibition against lawyers engaging in discrimination based on one of the protected classes into the black letter of the Model Rules and gain authoritative status.
The CLE centered around this proposal and how the proposed amendment, if adopted, would affect the state of lawyer misconduct rules. After providing the participants with an overview of the proposal, the panelists presented several fact patterns to explore the effects of the proposed amendment, as well as the current rules. These hypothetical scenarios included instances of a law firm asking for wholly irrelevant information about a party’s immigration status during discovery, a law firm failing to respond to the creation of a hostile environment based on race for an associate, a lawyer discovering via social media that one of the jurors in a case had racial bias and attempting to exploit that juror’s bias to increase the chances of gaining a favorable outcome for her client, and a male partner in a law firm making comments that could be perceived as sexual in nature to one of his female associates while on an out-of-town trip for a deposition.
During the panel, the differences between the implications of the conduct in the scenarios under the current rule and under the proposed amendment were explored, with several prominent differences being discussed. For example, the current language in the Comment references prejudice and bias for conduct occurring “in the course of representing a client.” The proposed amendment would apply to conduct “related to the practice of law.” Hence, the amendment would broaden the scope of coverage. This widening of coverage would include incidents related to the management and/or operation of a law firm. In addition, the presence of the word “knowingly” in the proposed amendment was discussed, along with the possible implications of having a knowing standard.
Although the primary focus of the CLE was on Model Rule 8.4, myriad other ethics rules were incorporated into the panel presentation, including ex parte communications, candor toward the tribunal, declining or terminating representation, fairness to the opposing party, and responsibilities of partners, managers, and supervisory lawyers.
The CLE facilitators’ goal was to garner extensive audience participation, and this goal was easily met. The high level of participation is indicative of the salience of the Model Rules, as well as the importance lawyers place of the application of the Rules.
It is noteworthy that many of the issues raised during the discussion were addressed in a later draft of the proposed amendment to Model Rule 8.4 that was subsequently released. It reads as follows:
(g) harass or discriminate 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. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.
The ABA Standing Committee on Ethics and Professional Responsibility is preparing a Resolution and Report for submission to the House of Delegates for discussion at the 2016 Annual Meeting in San Francisco, California. For more information about the proposed amendment and for updates, please visit www.americanbar.org/groups/professional_responsibility/committees_commissions/ethicsandprofessionalresponsibility/modruleprofconduct8_4.html.