Washington Lawyer - November/December 2024 - 36

SPEAKING OF ETHICS
DISCRIMINATION & HARASSMENT
The Challenge of
Professional Standards
By Hope C. Todd
" Discriminatory and harassing conduct,
when engaged in by lawyers in connection
with the practice of law, engenders
skepticism and distrust of those charged
with ensuring justice and fairness. "
ABA Formal Opinion 493
I
n August 2016, the American Bar
Association adopted Model Rule
8.4(g), making it professional misconduct
for a lawyer 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. This
paragraph does not limit the ability of a
lawyer to accept, decline or withdraw from
a representation in accordance with Rule
1.16. This paragraph does not preclude legitimate
advice or advocacy consistent with
these Rules.
Notwithstanding the diversity of those entering
the legal profession during the past 40
years, the ABA Model Rules of Professional
Conduct did not until August 2016 expressly
prohibit discriminatory or harassing conduct
in a black letter rule. Indeed, an outside observer
might have wondered how a profession
charged with ensuring fairness and equal justice
under law could lack a model rule of professional
conduct that prohibits knowing discrimination
and harassment, including sexual harassment,
in conduct related to the practice
of law.1
Law is a self-regulated profession, which means
that it both determines and enforces the standards
of conduct for its members. The legal
profession defines what does or does not con36
WASHINGTON LAWYER
* NOVEMBER/DECEMBER 2024
stitute permissible or mandatory conduct
through regulatory rules. A violation of one or
more ethics rules may serve as a basis for admonishing,
reprimanding, suspending, or disbarring
a lawyer.
Although all U.S. jurisdictions have adopted a
version of the ABA's Model Rules, the rules of a
particular jurisdiction may vary (and sometimes
do, quite significantly) from the Model Rules.
The majority of professional values reflected in
the Model Rules, however, are ones that the
profession fundamentally agrees upon, even if
jurisdictions sometimes disagree about which
obligation is more important in the face of
competing duties, or how to fulfill a specific
duty. Yet, the profession has been challenged
to define and enforce standards of conduct relating
to discrimination, bias, and harassment,
including sexual harassment.2
A BRIEF HISTORY
When the Model Rules were initially adopted in
1983, there was no provision on discrimination,
bias, or harassment. In 1994 the ABA Young
Lawyers Division and its Standing Committee
on Ethics and Professional Responsibility proposed
an anti-discrimination rule, but due
to opposition within the profession, it was
rescinded. However, in 1998 the ABA added
Comment [3] to Model Rule 8.4,3
providing that
[a] lawyer, who, in the course of representing
a client, knowingly manifests by words
or conduct, bias or prejudice based upon
race, sex, religion, national origin, disability,
age, sexual orientation or socioeconomic
status violates paragraph (d) when such
actions are prejudicial to the administration
of justice.4
Yet, a specific rule prohibiting discrimination or
harassment by a lawyer beyond conduct occurring
during the representation of a client
within the confines of a court proceeding remained
elusive for almost two decades.5
In 2016 opposition to then-proposed Model
Rule 8.4(g) came primarily, although not exclusively,
from those who fiercely argued that the
rule was, in effect, a lawyer speech code and violated
attorneys' First Amendment rights.⁶ Supporters
noted that was neither the scope nor
intent of the proposed rule.⁷ It is also fair to
consider that a lawyer's conduct, including specific
restrictions on speech, is currently subject
to regulation through various rules of professional
conduct, including Model Rules 1.6, 3.3,
3.5, 3.6, 3.8, 4.1, 7.1, and 8.4(c).
THE DISTRICT OF COLUMBIA
The District of Columbia was an early adopter
of a rule (D.C. Rule 9.1) prohibiting discrimination
by lawyers in conditions of employment.8
D.C also adopted a version of Model Rule 8.4(d),
Comment [3] in 2007.
Following the ABA's adoption of Model Rule
8.4(g), and after years of study, the D.C. Bar Rules
of Professional Conduct Review Committee recommended
that the District broaden the scope
of its existing rules on discrimination, bias, and
harassment.⁹ The committee's report expressed
that the Bar's responsibility to lead the profession
in promoting equal justice under law
should include working to eliminate discrimination,
bias, and harassment, " not just in the courtroom,
but wherever it occurs in conduct by
lawyers related to the practice of law. " 10
In considering the First Amendment criticisms
of the Model Rule as well as comments received
on an earlier proposal, the committee sought
to address constitutional concerns by defining
misconduct in proposed D.C. Rule 8.4(h) to include
only " conduct directed at another person,
with respect to the practice of law, that the lawyer
knows or reasonably should know is harassment
or discrimination. " 11
OTHER JURISDICTIONS
Since 2016, at least 14 states have either adopted
or amended their ethics rules along the
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