August 12, 2016

ABA strengthens provision making harassment, discrimination “professional misconduct”

The American Bar Association adopted Monday a revised resolution to strengthen language in Rule 8.4 that would classify harassment or discrimination in the practice of law professional misconduct subject to disciplinary action.

While the proposal drew widespread interest in the legal profession and division among ABA entities during the past few months, recent changes, including incorporating a knowledge requirement in the specific language of the model rule, served to bring near unanimous agreement in the final vote. More than 70 ABA members signed up to speak on behalf of the revised proposal, while none spoke against it. The House approved the change by voice vote with only a few members voting “no.”

The action by the House — made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations — came near the end of the first day of its two-day session that caps an ABA Annual Meeting that began on Aug. 4.

The resolution that revised Rule 8.4 specifically addresses harassment and discriminatory conduct by a lawyer based on race, religion, sex, disability, LGBTQ status and other factors when such conduct is related to the practice of law. Previously, language covering such behavior was included in a comment to the model rule but was not considered as authoritative as specific language. ABA model rules, which support professional standards, serve as guides for state regulatory bodies that govern the legal profession; model rules carry no licensing authority per se.

Myles V. Lynk of Arizona, chair of the ABA Standing Committee on Ethics and Professional Responsibility, noted that 25 jurisdictions across the country have adopted similar language to the Rule 8.4 revision. His standing committee led the push for the change.

“The states have not waited for the ABA to act,” Lynk said in House debate. “They have been laboratories of change…it is time for the ABA to catch up.”

In other matters, the House also concurred with a proposal from the ABA Council of the Section of Legal Education and Admissions to the Bar that would allow law students to get credit for externships for the first time. The voice vote came after a short, but spirited debate in which advocates said the change would assist students to offset the sometimes six-figure debt they incur over three years of law school.

Josephine Bahn, a vice chair of the ABA Law Student Division, which several years ago initially pushed for the change, said paid externships would give the nation’s 115,000 law students greater “ability to defray some of the enormous educational costs by earning modest pay.”

The change in standards requires detailed requirements for schools to follow to ensure they have appropriate academic and clinical components. “These students are not going to be left on their own,” said Christine Durham, a former chief justice of the Utah Supreme Court and former chair of the ABA sponsoring section.

The House also approved resolutions urging expansion of diversity and inclusion efforts in the legal profession and the justice system, including broadening the pool for members of the judiciary. Specifically, the House:

  • Urged the U.S. president and “appropriate parties” to recognize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity for the judiciary (102).

  • Called for all providers of legal services, including law firms and corporations, to expand and create opportunities for diverse attorneys and urges “clients to assist …and to direct a greater percentage of the legal services they purchase … to diverse attorneys (113).

  • Adopted language geared to standardize a Spanish-language Miranda warning, estimated to be needed nearly 900,000 times per year. The resolution urges federal, state, local and territorial law-enforcement authorities to provide an accurate translation of the warning in Spanish. Fifty years ago, the U.S. Supreme Court declared in the historic case of Miranda v. Arizona that whenever a person is taken into police custody, he or she must be told of the Fifth Amendment right not to make any self-incriminating statements before being interrogated (110).

Monday’s action on all House resolutions can be found here. Deliberations continue Tuesday.