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ABA issues new guidance for model rule on lawyer misconduct

July 20, 2020

The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance on July 15 that expands on the purpose, scope and application of a model rule that covers a lawyer’s conduct related to harassment and discrimination.

The Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

The Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

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ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and in contexts that may not be connected to representing a client. These include such activities as operating a law office or behavior at bar association or other business and social events when they are related to the practice of law.

The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is more broad than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.

As adopted by the ABA House of Delegates in August 2016, 8.4(g) was intended to be broad. The report, which accompanied the resolution, said evidence of sexual harassment could include “activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm or in connection with their practice of law.” Critics say the model rule imposes an unconstitutional restraint of speech on lawyers and extends too far beyond the traditional definition of the practice of law.

The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.” 

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model rules of professional conduct. Lawyers, however, are regulated and disciplined through rules on the state level.

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