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By Samson Habte
Dec. 29 — A lawyer who sexually harasses a law firm colleague can be sued for creating a hostile workplace, and a lawyer who gets drunk at a firm holiday party and directs homophobic or racial slurs at a co-worker may get a visit from human resources.
Those offenses also could result in professional discipline under the ABA ethics committee's latest draft of proposed amendments that expand the definition of “professional misconduct” in Model Rule of Professional Conduct 8.4.
The draft amendments—which may undergo further revisions before they are presented to the ABA House of Delegates for consideration in August—include a proposal to create a new Model Rule 8.4(g), which would state:
It is professional misconduct for a lawyer to[,] … in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.
Comment  to Model Rule 8.4 currently specifies that the definition of “conduct prejudicial to the administration of justice” under Rule 8.4(d) can include discriminatory words or actions directed at certain minorities “in the course of representing a client.”
The ABA Standing Committee on Ethics and Professional Responsibility has suggested replacing that language with a broader provision in the rule itself to prohibit harassing or discriminatory conduct “related to the practice of law.”
That would “expand the coverage” of the anti-discrimination mandate, the committee said in a Dec. 22 memo. The committee explained that comments—unlike rules—are not authoritative, and that the phrase “conduct related to the practice of law” covers more ground than the phrase “in the course of representing a client.”
The draft proposal further suggests adding new language to Comment  specifying that “the operation and management of a law firm” is one area of conduct “related to” the practice of law. The upshot, the memo says, is that the proposed prohibition would apply to harassing or discriminatory conduct in the workplace.
Written comments will be accepted until March 11, and the committee will hold a public hearing in San Diego on Feb. 7 to discuss the proposal.
The committee is seeking feedback on its July draft as well, including input on whether proposed Rule 8.4(g) should be limited to conduct that occurs “in the course of representing a client”—which, unlike “conduct related to the practice of law,” would not cover the operation and management of a firm and thus not implicate workplace discrimination or harassment.
In its December memo the committee said it “heard from some in the bar that because legal remedies are available to persons who believe that a lawyer or law firm has harassed or discriminated against them in employment, such conduct by lawyers should not also be deemed to be professional misconduct.”
The committee was not convinced. The “argument for exclusion of [workplace] activities was less compelling than for inclusion,” it said in the memo.
“[O]ne simply cannot demand one level of professional behavior for lawyers that is external to their own law practice while allowing a lesser standard of behavior inside one's own office,” the memo states.
The committee said the fact that legal remedies exist for those who suffer workplace harassment or discrimination at the hands of lawyers isn't reason enough to exclude that behavior from the scope of the proposed rule. “[L]egal remedies are available for other conduct, such as that described in paragraph (c) to Rule 8.4—fraud, deceit or misrepresentation—but such conduct also constitutes professional misconduct,” the memo states.
Accordingly, the committee endorsed a broader rule that would cover activities relating to the operation and management of a law firm. “This would include conduct at activities such as law firm dinners and events at which the lawyers were present solely because of their association with the law firm,” the memo states.
A memo the committee released with the July draft proposal says that at least 24 U.S. jurisdictions have adopted “some form of [an] anti-bias, anti-prejudice and/or anti-harassment” mandate in the black letter of their lawyer conduct rules.
But the July memo also notes that jurisdictions adopting anti-discrimination rules did so “in a number of different ways—sometimes very broadly, sometimes more narrowly.” The December memo observes that those variations extend to whether the prohibition on harassment and discrimination covers workplace activities. “Nationally, there are states that both explicitly include and explicitly exclude those activities,” it says.
Another noteworthy change the committee has proposed would eliminate existing language in Comment  that excludes the discriminatory use of peremptory challenges in jury selection as a prima facie basis for discipline.
As currently written, Comment  provides in relevant part: “A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of [Rule 8.4(d)].”
The committee said some have raised concerns “that this sentence could be read as limiting a trial judge's discretion on whether to refer such conduct for discipline.”
“The [committee] concluded that the Comment to this rule need not address or take a position, either way, on the weight of evidence in a disciplinary proceeding or preempt the disciplinary process,” according to the December memo.
Conversely, the committee suggested adding language to Comment  to make clear that new Rule 8.4(g) would “not apply to conduct that is unrelated to the practice of law or to conduct protected by the First Amendment.”
“The Comment makes clear that a lawyer does retain a ‘private sphere' where personal opinion, freedom of association, religious expression, and political speech is protected by the First Amendment and not subject to the Rule,” the December memo states.
The committee also proposed retaining but redrafting an existing exception in Comment  that insulates lawyers from discipline for “legitimate advocacy” that requires a lawyer to reference a person's status or group.
The current version of Comment  states: “Legitimate advocacy respecting the foregoing factors does not violate paragraph (d).” The draft proposal would provide that new Rule 8.4(g) “does not prohibit lawyers from referring to any particular status or group when such references are material and relevant to factual or legal issues or arguments in a representation.”
The committee said the proposed revision provides a “clearer standard than ‘legitimate advocacy' for disciplinary counsel and state courts to apply, as it incorporates concepts already known in the law—‘material' and ‘relevant.'”
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