The ABA Standing Committee on Ethics and Professional Responsibility has recently proposed amending the ABA Model Rules of Professional Conduct to add to Rule 8.4 a prohibition against harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. {Ed. Note: Does anyone know what "socioeconomic status" means in this context?] Earlier this month, at the ABA Mid-Year Meeting in San Diego, the Committee held a hearing on the proposal.
Proposed Rule 8.4(g) specifically provides that it would be professional misconduct for a lawyer 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] [in] the practice of law. This proposed change was the topic of a January 25, 2016 post by Kate Schnake.
The Committee also proposed adding a comment to Rule 8.4, which would explain that the prohibition applies to lawyers acting "in the course of representing a client" and "knowingly manifests by words or conduct, bias or prejudice" based upon the listed classifications "when such actions are prejudicial to the administration of justice." The proposed comment notes that legitimate advocacy of issues involving those classifications would not violate the rule.
Many states already have rules addressing this issue. In Indiana, Minnesota and Ohio, for example, it is a violation of Rule 8.4(g) to harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, status with regard to public assistance, ethnicity, or marital status when that harassment occurs in a professional capacity (Indiana and Ohio) or in connection with the lawyer's professional activities (Minnesota).
In Colorado, Rule 8.4(g) makes it misconduct for a lawyer to engage in conduct that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status when the lawyer is representing a client and the conduct is directed to any person involved in the legal process (including other counsel, court personnel, witnesses, parties, judges, judicial officers).
In Florida, Rule 4-8.4(d) provides that a lawyer may not disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic. The lawyer's conduct may engage in such conduct either knowingly or through "callous indifference" and it must be in connection with the practice of law and prejudicial to the administration of justice.
Michigan's Rule 6.5(g) broadly requires that lawyers must treat with courtesy and respect all persons involved in the legal process, taking care to avoid treating such a person discourteously or disrespectfully because of the person's race, gender, or other protected personal characteristic.
Rhode Island's Rule 8.4(d) prohibits all conduct that is prejudicial to the administration of justice, and within that prescription specifically identifies harmful or discriminatory treatment of litigants, jurors, witnesses, lawyers, and others based on race, national origin, gender, religion, disability, age, sexual orientation or socioeconomic status.
Illinois Rule 8.4(j) makes it misconduct only to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. In addition, the conduct must reflect adversely on the lawyer's fitness as a lawyer, which depends on an analysis of factors that include the seriousness of the act, the lawyer's knowledge that the act was prohibited by statute or ordinance, whether the act was part of a pattern of prohibited conduct, and whether the act was committed in connection with the lawyer’s professional activities. Another requirement for disciplinary action in Illinois is that a court or administrative agency must find that the lawyer has engaged in an unlawful discriminatory act. The Illinois rule is perhaps the most narrow in scope because of the requirement of a judicial or administrative finding of discriminatory conduct.
The take-away here is that many states have a rule that prohibits discriminatory conduct, and a lawyer should become aware of any such rule in her or his jurisdiction, and the circumstances under which the prohibition applies to the lawyer's conduct.
