ABA Ethics Committee Floats Draft Anti-Bias Rule

By Samson Habte

July 28 — The ABA's ethics committee will soon finalize a proposed amendment to the Model Rules of Professional Conduct that would directly prohibit lawyers from harassing or discriminating against certain classes of persons while engaged in the practice of law.

Comment [3] to Model Rule 8.4 already cautions lawyers not to exhibit “bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status” while representing a client.

However, a number of diversity-focused bar organizations urged the committee to draft amendments that would directly address anti-discrimination issues in the black letter of the Model Rules.

In a July 16 memo to those groups, the committee agreed to do so.

The committee suggested that the amendment appear in a new Rule 8.4(g). The working “discussion draft” would make it professional misconduct to:

knowingly harass or discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, while engaged [in conduct related to the practice of law] or [in the practice of law].

In an interview with Bloomberg BNA, the committee's chair, Arizona State University law professor Myles V. Lynk, said interested persons are invited to participate in a July 31 roundtable discussion, to take place during the 2015 ABA Annual Meeting in Chicago, where the committee will consider revisions to its draft rule.

Lynk said the committee hopes to finalize and submit the proposed amendment to the ABA House of Delegates before the end of 2015.

Comments can also be e-mailed to Dennis.Rendleman@americanbar.org, or sent to Dennis A. Rendleman, Ethics Counsel, Center for Professional Responsibility, American Bar Association, 321 North Clark Street, 17th Floor, Chicago, IL 60654.

Public Input Sought 

The July 16 memo contains an in-depth discussion of language choices the committee made in crafting proposed Rule 8.4(g) and revisions to Comment [3]. The memo invites comments on several of those linguistic choices, including:

▸ The decision to include a mens rea requirement authorizing discipline only where a lawyer “knowingly” engages in the type of harassment or discrimination prohibited by proposed Rule 8.4(g).

▸ The use of the phrase “harass or discriminate”—rather than the words “bias or prejudice,” which are used in Comment [3]—to define the conduct prohibited under proposed Rule 8.4(g).

▸ The appropriateness of expanding the list of “protected classes” by forbidding harassment or discrimination based on gender identity, ethnicity and marital status—categories not covered under Comment [3].

▸ The wisdom of carrying over language in Comment [3] that prohibits harassment or discrimination based on “socioeconomic status.”

▸ Whether the scope of proposed Rule 8.4(g)—which will apply to conduct that is “related to the practice of law” or that occurs while an attorney is “engaged in the practice of law”—raises concerns about “lawyers' First Amendment rights to express their personal views on any subject,” and whether a comment is thus needed to “address the issue of a lawyer engaged in, for example, a political campaign or other advocacy that is unrelated to the practice of law.”

▸ Whether the committee appropriately retained a safe harbor in Comment [3] which provides that “A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.”

▸ Whether the following language in the proposed revision to Comment [3] provides “sufficient guidance” to disciplinary counsel: “[Rule 8.4(g)] incorporates by reference relevant holdings by appropriate courts and administrative agencies.”

Following the States 

The memo notes that 24 jurisdictions have adopted “some form of anti-bias, anti-prejudice and/or anti-harassment” mandates in the black letter of their lawyer conduct rules.

Lynk told Bloomberg BNA that the committee decided to “follow the lead of the states” that have adopted black-letter rules at the urging of four groups: the ABA Commission on Sexual Orientation and Gender Identity, the ABA Commission on Disability Rights, the ABA Commission on Women in the Profession and the ABA Commission on Racial and Ethnic Diversity.

But the memo also notes that the jurisdictions that adopted anti-discrimination rules did so “in a number of different ways—sometimes very broadly, sometimes more narrowly.” A chart attached to the memo outlines those variations.

Debatable Issues 

In his interview with Bloomberg BNA, Lynk acknowledged that the committee confronted difficult questions in crafting its proposed amendments—and he stressed that the committee's current draft of proposed Rule 8.4(g) should be viewed as “a first cut” that may be revised before it is presented to the House of Delegates.

One area of controversy concerned the retention of language in Comment [3] that prohibits discrimination based on “socioeconomic status.”

Lynk said an ad hoc working group appointed to study the rule change expressed concern that retaining that phrase could mean that proposed Rule 8.4(g) will be “used to say that a legal services organization that only represents poor people is engaged in discrimination based on socioeconomic status.” Conversely, he said, retaining the reference could expose attorneys who handle high-stakes matters—such as high-asset divorces or corporate mergers—to discipline.

Lynk said the committee “could not quite divine what the original goal was for including” socioeconomic status in Comment [3], which was adopted in 1998.

Lynk also acknowledged the legitimacy of arguments from critics who have advocated eliminating the safe harbor in Comment [3] for peremptory challenges determined to have been exercised in a discriminatory manner. See, e.g., Lonnie T. Brown Jr., Racial Discrimination in Jury Selection: Professional Misconduct, Not Legitimate Advocacy, 22 Rev. Litig. 209 (2003).

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Text of proposed amendment is at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/draft_07082015.authcheckdam.pdf.

Full text of July 16 memo at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/language_choice_narrative_with_appendices_final.authcheckdam.pdf.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.

Case Law From Several States Illustrates Enforcement of Anti-Discrimination Rules

Although case law applying state analogues to draft Rule 8.4(g) is sparse, a review of authority by Bloomberg BNA indicates that disciplinary authorities in some jurisdictions—including Indiana, Minnesota, New Jersey and New York—actively prosecute violations based on their versions of the rule.

Indiana in particular has numerous cases sanctioning lawyers for discriminatory conduct in law practice. E.g., In re Dempsey, 986 N.E.2d 816 (Ind. 2010) (lawyer violated Rule 8.4(g) by handing out flyers that called sellers in a bankruptcy-related transaction “slumlords,” and that described their attorneys as “bloodsucking shylocks” who were part of a “heavily jewish [sic] . . . reorganization cartel”); In re Kelley, 2010 BL 105463, 925 N.E.2d 1279, 26 Law. Man. Prof. Conduct 321 (Ind. 2010) (first Indiana case applying Rule 8.4(g) in matter involving prejudice based on sexual orientation); In re McCarthy, 2010 BL 305338, 938 N.E.2d 698 (Ind. 2010) (publicly reprimanding lawyer who violated Rule 8.4(g) by writing e-mail to adversary which stated “I am neither you [sic] or [your boss's] nigger”); In re Campiti, 2009 BL 100620, 905 N.E.2d 408 (Ind. 2009) (reprimanding lawyer who, while representing father in a child support modification hearing, made disparaging remarks about fact that mother was not a U.S. citizen and was receiving free legal services).

See also In re Thomsen, 837 N.E.2d 1011 (Ind. 2005) (rejecting lawyer's argument that she was engaged in “legitimate advocacy” when she repeatedly referenced the race of the boyfriend of her client's ex-wife during a child custody hearing); cf. In re Usher, 2013 BL 134348, 987 N.E.2d 1080, 29 Law. Man. Prof. Conduct 329 (Ind. 2013) (declining to find violation of Rule 8.4(d) against lawyer who disseminated video featuring topless footage of young woman who spurned his advances; finding that lawyer's conduct was “motivated by personal anger at [the victim] rather than by bias or prejudice against women in general.”)

Cases from other jurisdictions include:

In re Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563, 15 Law. Man. Prof. Conduct 368 (Minn. 1999) (admonishing prosecutor for moving to exclude public defender from trial based solely on his race);

In re Williams, 414 N.W.2d 394 (Minn. 1987) (public reprimand of attorney who used racial slur in a deposition);

In re Vincinti, 554 A.2d 470 (N.J. 1989) (suspending lawyer for three years, in part, for comments that reflected racial innuendo);

Principe v. Assay Partners, 586 N.Y.S.2d 182 (N.Y. Sup. Ct. 1992) (finding violation based on references to opposing counsel as “little lady”); and

Matter of Monaghan, 743 N.Y.S.2d 519, 18 Law. Man. Prof. Conduct 407 (N.Y. App. Div. 2002) (censuring lawyer for racially offensive verbal abuse of opposing counsel).