Before the #MeToo movement swelled into a cultural and legal phenomenon, the legal profession was already wrestling with how to address discrimination and harassment. In August 2016, the American Bar Association adopted Model Rule 8.4(g) at its annual meeting. The rule makes it professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination 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.”
The model rule has sparked its own groundswell of controversy. In particular, some lawyers have claimed it could chill First Amendment religious and free speech rights. Concerns have also arisen over the possible broad scope of conduct “related” to law practice. As of June 13, according to an ABA report, only Vermont has actually adopted Rule 8.4(g). Maine and California have adopted rules similar to the model rule.
Some states have actively rejected 8.4(g). According to the same ABA report, Montana’s legislature claimed the state Supreme Court did not have the authority to regulate speech.
But now the Colorado Supreme Court’s Rules of Professional Conduct Standing Committee will consider adopting its own version of 8.4(g) at a hearing later this fall.
Rule 8.4(i) in Colorado just focuses on sexual harassment, instead of putting harassment and discrimination under the same umbrella. Attorney regulation counsel Jessica Yates, who represents the Office of Attorney Regulation Counsel on the standing committee, said that was a deliberate decision to head off the First Amendment objections that have plagued the ABA’s model rule.
She added the separation helps distinguish sexual harassment from discrimination, where a lawyer’s intent is relevant in figuring out whether the discrimination is professional misconduct.
Carving out sexual harassment “would make it clear that [the rule] really was about conduct, as opposed to an attorney’s personal point of view,” she said.
Rule 8.4(i) makes it professional misconduct for lawyers to “engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.”
A comment clarifying some of the rule change’s terms defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome.” The comment also says “professional activities” aren’t limited to the scope of a lawyer-client relationship.
When contacted for comment, the ABA directed Law Week to its report tracking state professional conduct rules on harassment and discrimination. The bar association otherwise declined to comment for this story.
States adopting rules around discrimination and harassment have varying views about the best way to structure them. California’s bar created Rule 8.4.1 as part of a total overhaul of the state’s professional conduct rules. The updates went into effect in November 2018. The 14-page rule prohibits unlawful discrimination, retaliation and harassment both in representing clients and in the workplace.
Mark Tuft, a member of the state’s 2014 and 2017 rules revision commissions, said he believes California’s rule quells First Amendment and privacy objections because it’s tied to to unlawful discrimination, harassment and retaliation. That’s a key difference from Model Rule 8.4(g). Tuft said the ABA’s rule doesn’t limit the conduct it covers to that which is already unlawful because not all jurisdictions have robust laws around discrimination and harassment.
“We both started from the same point, which is lawyers who are sworn to uphold the law, they shouldn’t have to wait for somebody to make it unlawful. They shouldn’t be discriminating,” Tuft said. “California happens to have an awful lot of law in this area, so we felt very comfortable that we weren’t upsetting the apple cart by adopting our rule.”
Tuft called California’s previous rule about employment discrimination “completely unworkable” because making a claim in the disciplinary process first required a finding by a court that the accused lawyer had engaged in discrimination.
Rule 8.4.1 does contain a broad exception for lawyer’s conduct during “legitimate advocacy,” such as during a lawyer’s cross-examination of a witness. Tuft said California’s trial lawyers association strongly opposed getting rid of that exception when the state adopted 8.4.1. He added he believes the rule’s tie to unlawful conduct will be a useful check on the legitimate advocacy exception.
Allan Keyes, who chairs Vermont’s Advisory Committee on the Rules of Civil Procedure, said the state had a rule about discrimination before the ABA adopted 8.4(g), but it didn’t extend to harassment.
He said when Vermont decided to adopt the model rule, they used the state’s public accommodations law as a reference to come up with a list of protected characteristics.
The characteristics in Vermont’s updated rule include race, color, sex, religion, national origin, ethnicity, ancestry, place of birth, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.
Despite concerns that California’s sweeping new rule could result in a flood of complaints, Tuft said he isn’t aware of any new cases yet, though it’s been less than a year since it went into effect. He said he hopes 8.4.1’s impact will be proactive: Its complexity will motivate employers to bolster their anti-discrimination and harassment efforts in fear of getting caught in 8.4.1’s web.
“The proof will be in the pudding,” Tuft said.
— Julia Cardi