Washington Lawyer - November/December 2024 - 37

SPEAKING OF ETHICS
lines of Model Rule 8.4(g).12
Nine states debated
and rejected proposals to incorporate
changes based on Model Rule 8.4(g), generally
citing First Amendment concerns and the chilling
of lawyers' free speech as their reasons for
rejecting the rule.13
Pennsylvania's version of Rule 8.4(g) was challenged
following adoption by its Supreme
Court. Attorney Zachary Greenberg taught CLE
courses on the First Amendment. Because he
regularly quoted offensive language from judicial
opinions and discussed controversial topics
in his classes, he feared his speech would be interpreted
as discrimination or harassment under
the rule and alleged that the rule violated
the First Amendment and was unconstitutionally
vague.14
In August 2023, the U.S. Court of
Appeals for the Third Circuit found that Greenberg
lacked standing to bring his challenge.
The court further held that " Rule 8.4(g) does
not generally prohibit [a lawyer] from quoting
offensive words or expressing controversial
ideas, " adding that " the Rule covers only knowing
or intentional harassment against a person. " 15
MISPLACED
FEAR?
Among other concerns sometimes raised
against Model Rule 8.4(g) or its analogs is fear
of over-enforcement. However, a 2023 Law360
survey of 3,000 public disciplinary cases found
only five cases that involved states' rules similar
to Rule 8.4(g), and in four of those matters, lawyers
were found to have engaged in physical
sexual harassment.16
Consistent with these findings, there also is no
public discipline involving D.C. Rule 9.1. There is,
however, a disciplinary case involving a lawyer's
sexually abusive conduct.
In In re Harkins, the respondent had been convicted
of misdemeanor sexual abuse for touching
a fellow Metro passenger inappropriately
several times and following her when she
changed seats to avoid him. The D.C. Court of
Appeals imposed a 30-day suspension after
finding that, " [d]espite not directly implicating
honesty or trustworthiness, sexually abusive
contact, because of its inherently violent nature,
calls into question one's fitness as a lawyer
and thus falls within the ambit of Rule 8.4(b). " 17
Harassing conduct that rises to the level of a violent
crime falls within the scope of an existing
D.C. Rule. Short of that egregiousness, however,
outside of the representation of a client in a
court proceeding, or conduct related to conditions
of employment, a lawyer's knowing discriminatory
or harassing conduct, including
sexually harassing conduct, related to the practice
of law and directed toward another person
would likely not violate the D.C. Rules as currently
constituted.
CONCLUSION
The legal landscape involving the principles set
forth in Model Rule 8.4(g) continues to evolve.
The profession's challenges when it comes to
setting standards of conduct related to discrimination,
bias, and harassment reflect similar
challenges faced within the broader society.
Yet, when one considers the basic tenets of justice,
namely fairness and equality, a rule prohibiting
intentional discrimination and harassment
by lawyers in the practice of law does not seem
too high an ideal.
D.C. Bar legal ethics counsel are available for confidential
inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 Adopted in 2007, Rule 2.3 of the ABA Model
Code of Judicial Conduct requires judges to
carry out the duties of judicial office without bias
or prejudice and also prohibits a judge, in the
performance of judicial duties, from manifesting
bias or prejudice or engaging in harassment by
words or conduct.
2 By August 2016, about half of all U.S. jurisdictions
had a provision in the black letter of their
ethics rules governing discrimination, bias, or
harassment; 14 others had adopted a comment
similar to Model Rule 8.4, former Comment [3];
14 jurisdictions lacked any related prohibitions in
either their rules or commentary.
3 This was superseded by Model Rule 8.4(g) and
related Comments in 2016.
4 It is professional misconduct for a lawyer to
" engage in conduct that is prejudicial to the
administration of justice. " See Model Rule
8.4(d). Comments do not have the force of
Rules: " The Comments are intended as guides
to interpretation, but the text of each Rule
is authoritative. " Model Rules of Professional
Conduct: Preamble & Scope [21].
5 In 2008 the ABA announced Goal III: Eliminate
Bias and Enhance Diversity. The Goal III entities
that helped to advance Model Rule 8.4(g) included
the Commission on Disability Rights,
the Center on Racial and Ethnic Diversity, the
Commission on Women in the Profession, and
the Commission on Sexual Orientation and
Gender Identity.
6 Public comments to then-proposed Rule
8.4(g) may be found here: https://tinyurl.com/
yf96kwdc. See also American Bar Association
Report to the House of Delegates, Revised
Resolution 109 (August 2016).
7 See also ABA Formal Opinion 493 (2020), which
offers guidance on Rule 8.4(g)'s purpose, scope,
and application. ( " The Rule does not prevent a
lawyer from freely expressing ideas or opinions
on matters of public concern, nor does it limit
a lawyer's speech or conduct unrelated to the
practice of law. " )
8 See D.C. Rule 9.1, which became effective in 1991.
9 The March 2021 Report and Recommendation
to Amend D.C. Rule 8.4 as approved by the
D.C. Bar Board of Governors is currently
pending before the D.C. Court of Appeals.
dcbar.org/getmedia/6a8d7e9d-99b7-49e0b45d-9416f32fca73/Rule-8-4h-Rules-ReviewCommittee-Report-Approved-April-2021.
10
Id. at 42. The committee recommends retaining
D.C. Rule 9.1 as a long-standing and wellunderstood
prohibition on discrimination in
conditions of employment.
11 Id. at 32, 33. Proposed Comment [4] also
defines discrimination, harassment, and sexual
harassment for purposes of the proposed rule.
Because D.C. Rule 8.4 already contains a subsection
(g), the proposed anti-discrimination and
anti-harassment rule is proposed as D.C. Rule
8.4(h).
12 Alaska, California, Colorado, Connecticut, Hawaii,
Illinois, Maine, Massachusetts, Missouri, New
Hampshire, New Mexico, New York, Pennsylvania,
and Vermont. See ABA comparison
chart: americanbar.org/content/dam/aba/
administrative/professional_responsibility/mrpc8-4.pdf.
13
Arizona, Idaho, Louisiana, Montana, Nevada,
North Dakota, South Carolina, Tennessee, and
Texas.
14 Zachary Greenberg v. Jerry Lehocky (No. 22-1733)
(3d Cir. 2023).
15 Id. at 8, 20.
16 See " Attorney Anti-Bias Rule Causes Controversy
but Few Public Cases, " Cara Baynes, Law360
(Sept. 5, 2023).
17 In re Harkins, 899 A.2d 755 (DC 2006).
NOVEMBER/DECEMBER 2024 * WASHINGTON LAWYER 37

https://tinyurl.com/yf96kwdc https://tinyurl.com/yf96kwdc https://dcbar.org/getmedia/6a8d7e9d-99b7-49e0-b45d-9416f32fca73/Rule-8-4h-Rules-Review-Committee-Report-Approved-April-2021 https://dcbar.org/getmedia/6a8d7e9d-99b7-49e0-b45d-9416f32fca73/Rule-8-4h-Rules-Review-Committee-Report-Approved-April-2021 https://dcbar.org/getmedia/6a8d7e9d-99b7-49e0-b45d-9416f32fca73/Rule-8-4h-Rules-Review-Committee-Report-Approved-April-2021 https://americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8-4.pdf https://americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8-4.pdf https://americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-8-4.pdf

Washington Lawyer - November/December 2024

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