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By Samson Habte
Sept. 8 — A lawyer who occupies a leadership role in an organization that has gender, religious or racial requirements for membership may be subject to discipline if he “personally participate[s] in activities that advance any of [the organization's] discriminatory requirements, policies or beliefs,” the Indiana bar's ethics committee has advised.
In this scenario the individual “should proceed with particular caution” if his “status as a lawyer is connected to his or her participation in the organization's activities,” the committee said.
A review of authority by Bloomberg BNA indicates that the opinion is one of the first to analyze an ethics standard—adopted in the black letter or comments of at least 36 jurisdictions' attorney conduct rules—that prohibits lawyers from discriminating against certain classes of persons while engaged in the practice of law. (The ABA is considering whether anti-bias language should be added to the text of Model Rule 8.4. See 31 Law. Man. Prof. Conduct 431.)
The committee said a paucity of case law interpreting Indiana's anti-bias mandate—codified in Indiana Rule of Professional Conduct 8.4(g)—made it difficult to offer a clear answer to the question that triggered the opinion: whether a lawyer violates the rule “by participating as a leader of a nonprofit organization that has gender, religious or racial requirements for membership.”
The particular organization the lawyer asked about “excludes women from membership and admits only white men who practice a certain religion,” the committee said.
Rule 8.4(g) provides in relevant part: “It is professional misconduct for a lawyer to engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.”
The main source of analytical uncertainty, the committee said, is a lack of Indiana Supreme Court authority interpreting the phrase “in a professional capacity.”
But the committee said some guidance as to the scope of Rule 8.4(g)—and its applicability to a lawyer's membership in exclusionary organizations—can be gleaned from disciplinary cases, including In re Dempsey, 986 N.E.2d 816 (Ind. 2013), and In re Usher, 987 N.E.2d 1080, 29 Law. Man. Prof. Conduct 329 (Ind. 2013).
“Certainly [Rule 8.4(g)] touches all activity by an attorney arising out of the broad representative functions describe[d] in the Preamble to the Rules so long as a client is involved,” the committee stated.
“But when there is no client involved, the Rule still has some application to behavior where the lawyer’s status as a lawyer is a relevant part of the picture and the lawyer can be deemed to have intentionally engaged in types of discriminatory behavior proscribed by the Rule, as Dempsey and Usher show,” the opinion states.
The committee said its inquiry was also complicated because “there are constitutional issues that cannot be avoided in addressing the question presented by this hypothetical.”
Citing Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), which addressed whether the right to “intimate association” was abridged by a Minnesota anti-discrimination law that compelled an all-male organization to accept female members, the committee said:
[T]he character of the organization seeking Attorney A's leadership services is critical in determining the extent to which any constitutional freedom of association may have application to A's situation. … The Court in the Jaycees case also made it clear that a more stringent test would be applied if the goal of the organization involved other recognized freedoms such as freedom to worship, to speak or to petition the government for redress of grievances.
“Whether Attorney A could claim constitutional protection from Rule 8.4(g) based on freedom of association would seemingly depend, at least in part, on the nature of the organization he is asked to help lead,” the committee said.
While the committee stressed that its guidance was limited by the dearth of court decisions interpreting Rule 8.4(g), it did reach these conclusions:
• “An attorney who merely participates in his personal capacity in an organization that has gender, religious or racial requirements for membership and does not participate in his or her capacity as a lawyer would not be in violation of Rule 8.4(g) … simply by virtue of the connection to such an association.”
• Nor does a lawyer violate Rule 8.4(g) “merely by providing legal representation to [the] organization,” because “such representation can often be accomplished without the lawyer personally making discriminatory comments or engaging in discriminatory conduct and because the ‘legitimate advocacy' exception is likely to cover situations where the lawyer cannot avoid such statements or conduct.”
• Because “participation is different from representation in this context,” a lawyer should “be mindful of the particular practices of such an organization if the lawyer intends to personally participate in activities that advance any of its discriminatory requirements, policies or beliefs. The lawyer should proceed with particular caution if the lawyer's status as a lawyer is connected to his or her participation in the organization’s activities.”
• “[T]he nature of the organization and the lawyer’s role in the organization are critical to the outcome of any ethical analysis.”
The committee concluded with a plea for judicial guidance, stating: “In light of the delicate balance between constitutional rights and the necessity of fairness in the administration of justice, it is the Committee’s hope that the Indiana Supreme Court may offer further clarification on the scope of ‘professional capacity' by way of an official Comment to Rule 8.4(g).”
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