August 21, 2019

ABA Model Rule of Professional Conduct 8.4 Amended to Prohibit Discrimination

ABAOn Monday, August 8, 2016, the ABA announced that the ABA House of Delegates passed a resolution to amend Model Rule 8.4 in order to bring into the black letter of the rule an express prohibition against discriminatory conduct in the practice of law.

Revised Resolution 109 amended subparagraph (g) of Model Rule 8.4 as follows:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate 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 Rule 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.

Additionally, the Comment to the Model Rule was amended as follows:

[3] 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. Legitimate advocacy respecting the foregoing factors does not violate  paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a  discriminatory basis does not alone establish a violation of this rule.

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence  in the legal profession and the legal system. Such discrimination includes harmful verbal or  physical conduct that manifests bias or prejudice towards others because of their membership or  perceived membership in one or more of the groups listed in paragraph (g). Harassment includes  sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Paragraph (g) does not prohibit conduct undertaken to promote diversity. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[5] Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation. A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

The remaining comments were renumbered.

The ABA Model Rules Committee considered the changes a “necessary and significant first step to address the issues of bias, prejudice, discrimination and harassment in the Model Rules,” but noted that it is only the first step in a multi-disciplinary effort to provide access to justice.

The chair of the ABA Standing Committee on the Model Rules, Myles V. Lynk of Arizona, noted that 25 jurisdictions across the country have enacted similar language. Over 70 lawyers signed up to speak in support of the changes, while none spoke in opposition. Only a few members of the House of Delegates voted “no” in a voice vote.

For the complete text of the ABA Resolution, click here.

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