August 03, 2018

ABA Rule 8.4 finding few followers, but sparking lots of encouraging discussion

Since the American Bar Association House of Delegates adopted a model rule two-and-a-half years ago, strengthening language against discrimination and sexual and other harassment, only one state, Vermont, has embraced the recommended language that included “conduct in the practice of law.”

Prior to the House action in February 2016, two dozen states had adopted some variation of Rule 8.4 of the ABA Model Rules of Professional Conduct although not as strong as the language in Rule 8.4(g). Presumably, 30 months later, advocates would be discouraged.

Not quite.

“It would be too easy, and mostly accurate, to tell you that 8.4(g) is dead in the water,” John Gleason, chair of the ABA Center for Professional Responsibility’s Policy Implementation Committee, said at a panel discussion at the ABA Annual Meeting in Chicago Thursday. “But that is too narrow of a statement.”

When the House strengthened Rule 8.4 at the 2016 Midyear Meeting in San Diego, reaction was immediate and mostly negative. The “black-letter” change included a formal Comment that stretched the rule to include conduct at “bar association, business or social activities in connection with the practice of law.” That language sparked strong criticism that the rule could infringe on free speech and religious freedom rights.

“The opposition was out in full force and we were the lone voice,” said Gleason, whose committee is charged with selling ABA policies to state supreme courts and state regulators.

Gleason, a Denver lawyer, and other panelists at the “CLE in the City” program, “Model Rule 8.4-Update, Discussion, and Best Practices in a #MeToo World,” believe that the debate over the past two years, coupled with the nationwide anti-sexual harassment movement is leading to a rethinking among lawyers about individual behavior as well as where misconduct can occur.

Sexual harassment, for instance, frequently happens outside the office and perpetrators could escape punishment under the prior model rule.

“This was the first major step at really looking at these issues,” said Wendi S. Lazar, a New York lawyer who represents plaintiffs in sexual harassment suits. She added that the passage of 8.4(g) “set the bar” for behavior for lawyers.

Allison Wood, a Chicago lawyer who moderated the panel, said in many states, even though regulators have not adopted the rule, lawyers are talking about it and awareness is being raised. “The more we have that dialogue more people are going to come forward and say, ‘that happened to me’,” she said.

Jayne R. Reardon, executive director of the Illinois Supreme Court Commission on Professionalism, discussed how Illinois has adopted one-hour CLE requirements for both diversity and inclusion and lawyer wellness.

Illinois is now one of three states that require a diversity and inclusion CLE credit, she said.

“I think there is promise there, but as we all know education is just the first step,” Reardon said, adding that the goal is to “change behaviors.”

She and other panelists praised the ABA for adopting Rule 8.4(g), which they said was an exercise in leadership in fighting sexual and other harassment.

“In the world of professionalism, it is like a performing art,” Reardon observed. “There is always room for improvement.”

The ABA Annual Meeting continues through Tuesday.