3.05.07. Rule 8.4(g): Engaging in conduct the lawyer knows/reasonably should know is harassment or discrimination

This subsection was adopted in September 2016 by the ABA.  The rule says that it is unethical for a lawyer to engage in conduct that the lawyer knows, or reasonably should know, is harassment or discrimination based on a litany of categories (from race to socioeconomic status).  To be sanctionable, the conduct must be “related to the practice of law” but does not have to occur in the courtroom.  The rule also includes two limitations (i.e. situations where a lawyer can discriminate).  First, in selecting clients, the lawyer has the right to reject clients for discriminatory reasons. For example, if a lawyer tells a prospective client: “I’m sorry, I would like to accept your case, but I will not because you are poor and cannot pay my fee.”  The lawyer here is expressly discriminating against this potential client because of their socioeconomic status, but this is not the type of discrimination the rule is intended to regulate.  Second, to the extent that discriminatory statements are made in the course of advising a client or legitimate advocacy on behalf of a client, a lawyer is not subject to discipline.  In addition to the new subsection, two new comments were added to the Rule – Comments [3] and [4] are new and Comment [5] was changed slightly.

This subsection was not adopted without controversy, and it is worth taking a little bit of time to think through the arguments for and against this amendment. Prior to the adoption of the current rule, issues of bias/discrimination were handled as “prejudicial to the administration of justice” under Rule 8.4(d), informed by the following Comment to the rule:

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, or [engages in conduct prejudicial to the administration of justice].  Legitimate advocacy respecting the foregoing factors does not violate [the rule].  A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

Arguments in favor of subsection (g)

Proponents of the new Rule put forward several reasons that the Comment to Rule 8.4 was not sufficient to prohibit discrimination.

First, the restriction was in the Comment – not the black letter rule.  That meant that the prohibition was not as authoritative as it would be if it was included in the rule itself.[1]  Second, the old Comment only applied when bias/discrimination occurred “in the course of representing a client,” which meant that discrimination was only prohibited in the context of a representation.  Proponents believed this definition was too narrow and that a great deal of discrimination/harassment occurred outside the context of a lawsuit.  For example, a partner making unwanted advances to an associate in the drive from a meeting to the office. 

Second, this amendment was needed because a large number of states have already amended their ethical rules to have a broader definition in the black-letter rules (25 states).  In contrast, 13 states have the prohibition in rule comments, and 14 states do not address this type of discrimination at all in their ethics rules.[2] 

Third, the rule is intentionally limited to conduct that is “related to the practice of law,” and therefore, does not attempt to reach conduct by a lawyer outside of practice.  However, because the professional role of lawyers extends beyond the representation of clients, the reach of the rule should address conduct that relates to the practice of law (for example law firm dinners and other social events where lawyers are only present because of their association with the firm). 

Fourth, the current Comment does not protect all of the groups that suffer discrimination or harassment.  Therefore, the new Rule includes protection based on “ethnicity,” “gender identity,” and “marital status.”

Fifth, the new rule was to reflect to the public that the legal profession takes discrimination and harassment seriously.  Moving the prohibition to the black-letter demonstrates a commitment to address discrimination and harassment.

In addition to these reasons for adopting a new rule, the ABA wanted to write the subsection to make sure that it was clear what it does not do:  (1)  the prohibition on discriminating based on socioeconomic status does not mean that a lawyer cannot reject clients because they cannot pay a fee (see Comment 5); (2)  the statement that lawyers can discriminate based on the ability of a client to pay a fee should not be read to mean that a lawyer should not engage in pro bono representation of the poor (see Comment 5); and (3) it is not considered discrimination under the rule for a law firm to adopt policies to promote diversity.  As of 2016, the legal profession is approximately 64% male and 36% female; 88% White; 5% Black; 4% Hispanic; and 3% Asian Pacific American; less than 1% for all others.[3]     

Arguments against subsection (g)

Proponents were met with five main arguments against adoption of the subsection.  First, making discrimination against the listed groups a basis for discipline could chill free speech and religious exercise.  For example, a lawyer who presents at a CLE (an event “related to law practice”) that expresses disagreement with the Supreme Court case legalizing same sex marriage could face a claim of discrimination.  While the opponents do not see a problem with restricting discrimination in the course of representing a client, they seek as problematic the broader “related to the practice of law” which they see as encompassing broader speech restrictions (presentation of CLE, participation in a debate, publication of an article on law).  Similarly, there is concern that the mind-set required:  “reasonably should know” that the conduct is discriminatory or harassment.  How sophisticated will we presume that a lawyer is such that it will be found that he should have known that his conduct was improper?

Second, by incorporating labor and employment concepts (“manifesting bias”) into the ethics rules, the disciplinary authority will have to know these substantive areas of law and individuals might skip litigation or administrative remedies to pursue an ethics claim.  In addition, there is no requirement that the harassment/discrimination be severe or pervasive, which makes the standard lower than anti-discrimination laws – a single harassing action could subject a lawyer to discipline.  In addition, the protected categories under Rule 8.4(g) are broader than those under federal and most state anti-discrimination laws.

Third, there are already enough avenues to obtain relief for discrimination/harassment through employment discrimination claims, it does not need to be included into the ethics rules as well.  It is not appropriate to turn employment disputes into disciplinary matters.

Fourth, the restriction encourages reverse discrimination because it only prohibits comments that are against the groups and not those in favor. Comment [4] explicitly states:  “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….” Thus, it would violate the rule for a law firm that is hiring for a position “we are not hiring you because you are gay,” whereas it would not violate the rule to tell a straight person “we are not hiring you because the other candidate is gay, and we want to increase diversity.”    

Fifth, and finally, the rule could be adopted by courts to impose liability in a malpractice suit against a lawyer.

Current status of subsection (g)

So, are states adopting the new subsection?[4]  To date, the only state that has adopted the ABA verbatim is Vermont.  Some states have rules that are analogous to subsection (g) but with some pretty significant modifications (for example, some states require a prior adjudication that an anti-discrimination statute has been violated before a lawyer can be disciplined).  Some states have explicitly refused to adopt the subsection after considering it.  For example, Louisiana, Nevada, South Carolina, and Tennessee all considered and rejected the subsection.  Consideration of the subsection was short-circuited in Texas when the state’s attorney general issued an opinion that adoption would violate the First Amendment.[5]  It will be interesting going forward to see how states react.

[1] To understand this, take a look at the Scope section of the Rules, paragraph [21].  It provides:  “The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.” 

[2] The states that do not address harassment/discrimination at all include Mississippi as well as Alabama, Georgia, and Louisiana.

[3] Statistics from the ABA Report to the House of Delegates, Revised Report 109 (August 2016)[http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/final_revised_resolution_and_report_109.authcheckdam.pdf (last visited March 30, 2017)].

[4] The ABA maintains a state-by-state chart of the current status of the adoption of Rule 8.4(g): https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/chart_adopt_8_4_g.authcheckdam.pdf

[5] https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/op/2016/kp0123.pdf.