It’s about Time the ABA Added Anti-Harassment Language to the Model Rules

Harassment text on sound block & gavel

You’d think this wouldn’t have been that big of a deal.

On Tuesday, after much gnashing of teeth and wailing from certain corners of the profession, the ABA finally adopted a resolution adding anti-harassment language to Model Rule 8.4. After all the wrangling, the language change is pretty anodyne.

It is professional misconduct for a lawyer to: […]

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

If you are not a lawyer, you will be forgiven for wondering why this sort of thing wasn’t already embedded in the legal profession’s rules of conduct, given that lawyers are typically the individuals that help companies write and enforce very similar rules of conduct.

The opposition to the proposed rule hit all the low notes that one might expect. There was the obligatory “discrimination isn’t really a problem” statement.

It is striking to note that nowhere…is any evidence presented that harassment or invidious discrimination actually exists to any significant degree in the legal profession – or that, if it does exist, it is such a serious and widespread problem that the Model Rules must be amended.

(I can’t even begin to address how wrong that statement is.)

There was also the argument that a ban on harassment or discrimination would somehow hamstring an attorney’s ability to do their job.

“It would change the attorney-client relationship and impair the ability to zealously represent clients,” said Kim Colby, director of the Center for Law and Religious Freedom at the Christian Legal Society, which opposes the amendment.

Such a change would also have a chilling effect on the ability of lawyers to engage in free speech, religious exercise and other First Amendment rights, Ms. Colby argued.

If you are unable to represent your client without sliding into harassment of, or discrimination against, another individual, something is very very wrong with your practice.

Finally, there was also the “hey, there are already laws in place that cover this, so why would we possibly need an ethics rule?” pushback.

Lawyers who discriminate or harass are already subject to liability under federal, state, and local anti-discrimination laws. In some instances they may face administrative actions. In short, there are sufficient means in place to sanction lawyers who engage in the sort of lamentable behavior that proposed Rule 8.4(g) seeks to address and to deter such misconduct in the first place.

This statement is true insofar as there are indeed laws in place that prohibit these things. Those laws also require people to bring individual lawsuits or agency actions to obtain any relief, a process that can drag out for years and cost a significant amount to pursue.

There are reasons that people hire lawyers to write these sorts of ethics rules into company codes of conduct: (1) companies realized placing the entire onus on the person who has suffered discrimination or harassment to personally prosecute their claims is absurd and good employees would seek out corporations that don’t sanction such conduct; and (2) businesses understood that providing ethical and social norms of behavior could go some distance to preventing bad behavior.

An ethical rule like this sets aspirational goals and expectations as to how lawyers should behave. The legal profession has a long way to go regarding erasing its pernicious discrimination problem, but we have to start somewhere.

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  • Jordan06

    Really interesting read. And I’m not a lawyer. Ha! Glad it’s happening but I do understand the debate against free speech. The thing is it comes down to common sense. I like the quote in this article: http://isitfunnyoroffensive.com/american-bar-association-votes-to-ban-sexist-language-honey/
    Didn’t know it comes down to state bars.

  • DudeAbiding

    It’s about time attorneys stifle dissenting opinions through speech codes.

    • you sarcastically comment then complain that we listen and obey you are perverse as well as absurd.

      • DudeAbiding

        Come again? Your “sentence” makes no sense.

        • Oh course because I called you a hypocrite that like many conservatives is today almost 100% rhetorical it what they word themselves as McCarthyites vaguely generally and otherwise lie for if you think liberal are the extreme left as you liars remind us daily god help the world as you have no sense of Marx Lenin Stalin and Mao.

        • I’m medium sure it’s just a bot just spewing random word salad.

  • David Bjornson

    This is really interesting!

  • American Jurisprudence in its reliance on precedents becomes a fruitless argument in relativity based in the heat of the moment as such my argument can be seen as conservative, in that conservatives fail to grown beyond the early foundations of law they are reactionary backward self-serving and ignorant and should be abolished. If need be we need a Napoleon to consolidate the basis of law in the US to something coherent unfortunately that cost would be too great a cost to bear.

  • Kurt Gordon

    I need some guidance here: Does “that skirt makes you look fat” qualify as harassment?

    • It probably qualifies as being an asshole.

      • Kurt Gordon

        Is your ad hom, followed by no response to the merits of my question, an admission that the rule could be used to sanction any language that a protected class might find offensive, hurtful or uninclusive?

        • What self-serving merits are you speaking about you are not conservative you are totally reactionary and exactly why people can hate you as in another age you would be shot. Hitler and Mussolini were not defeated by the US’s crazy Ayn Rand pro-fascist libertarian hyperbolic nonsense. The government = a state so it reasons a government with a state is oxymoronic try your metaphysics in hell.

  • Kurt Gordon

    How about: “Is that the best you could do to match that bag with those shoes?”

  • Kurt Gordon

    Who do we check with to make sure we call the member of the protected class the p/c term of the month? If you live in NY, you should already know? If you live in Kansas, you get a couple of months slack?

    • It seems like interpersonal communication might not be your thing.

      • Kurt Gordon

        Again, nothing on the merits.

      • Kurt Gordon

        I don’t know all the therapy terms but people being nice to each other is a good idea but a poor rule. “Wouldn’t it be nice” is a Beachboys song not a basis for rulemaking.

        • This is not a rule about being nice to people. Is a rule against harassing people. And as others have pointed out, harassing people on the basis of their membership in a protected class is already illegal under many state and federal laws. That means this sort of harassment is pretty well defined.

          The rule does not depend on the feelings of the person who may or might not have been harassed. The standard is the old, familiar “knew or should have known” standard that has been considered and reconsidered by more lawyers and judges than the definition of harassment, even.

          There is no standard in this rule that would surprise anyone who has been through law school or practiced law.

          Speaking of things that would not surprise a lawyer, the answers to the examples you posted are “it depends,” which is the right answer to most legal questions until you know a lot more of the details. Telling someone they look fat in what they are wearing might be harassing, or it might not be. The fact that I can’t tell you doesn’t mean the rule is vague or violates the First Amendment. It just means your hypothetical is devoid of context.

          • I thought your answer was stated well though I thought of how you were counseling reprobates in how to fashion their obscene comments so as to skirt the law as most often the law is meaningless as it is obstructed and delayed in the US based first on one’s finances then by class, school race religion, and collectively status. These people called Americans seem to think Hitler defeated by some means where those opposing fascism and police states are accused of the same much like the lies “about international conspiracies of Jews” that began as forgeries spread by the Czarist Okhrana.

            One thing for sure those who oppose “PC {political Correctness}” can not honestly attacks me for the same when call them idiots for they say they don’t believe it is wrong; and so ad reductio we find the tricky wording of the “Golden Rule” that is so often not thought of and mis-stated:

            Where The Know-Nothing Party has been cloned from the ashes of the GOP.

          • Sam, perhaps what Mr. Gordon might be trying to say is that attorney ethics bodies might not be the best people to police this subject matter. Maybe not everywhere, but in some states they are ill equipped to address the way the practice of law has already changed, and it causes well intentioned (and ethical) attorneys to get jammed up in “precautionary” investigations for no reason other than the investigators’ ignorance to things like technology. Do we really need more checks than we have already? I agree there are quite a few too many idiots out here who somehow managed to pass their character and fitness examinations, but I don’t believe the rest of us should be subjected to that kind of unfettered oversight.

            • I’m pretty sympathetic to arguments that ethics bodies can be an obstacle to innovation and that there are already too many ethics rules, some of which are vague, overbroad, wrongheaded, and maybe even unconstitutional. But even if we did away with all the silly advertising rules and moved to entity regulation like any sensible profession, I’d still want to see a rule like this survive. There’s no reason why this profession should permit harassment or discrimination.

              Most of the arguments I’ve seen object to the inclusion of discrimination in the rule. For example, in the Wall Street Journal, Ron Rotunda proposed these hypotheticals:

              Consider the following form of “verbal” conduct when one lawyer tells another, in connection with a case, “I abhor the idle rich. We should raise capital gains taxes.” The lawyer has just violated the ABA rule by manifesting bias based on socioeconomic status.

              And:

              More likely consequences include a scenario where, e.g., a law firm does not hire a job applicant who seeks a position as a messenger. If this firm designates restrooms by sex, the applicant can always argue that the firm engaged in “gender identity” discrimination. If the disappointed job seeker identifies with the opposite sex (or claims to), he creates leverage by claiming that he was not hired because the firm’s restrooms demonstrated gender-identity bias.

              I’m not convinced either one would actually fall under the rule. It’s not harassing to discuss tax policy, and it’s not “conduct related to the practice of law” just because you are doing it while chit-chatting in chambers while waiting for the judge to make an entrance. The second is an even bigger stretch. It’s an employment matter, if anything. Just because a law firm is involved doesn’t mean there is conduct related to the practice of law.

              Could an ethics body overreach and sanction a lawyer in either scenario? I guess so. But that’s true of every rule we have. And if ethics bodies have a tendency to get it wrong when it comes to technology, I think you could just as easily argue that they don’t exercise their power to remove unethical idiots from the practice of law as often as they should.

              Which is why I think we should try to establish good rules (and I think this is one) while we also try to ensure ethics bodies are doing their jobs.

              • I don’t disagree with you in theory or principal; just that from what I’ve seen, I don’t believe we should give the ethics bodies any more rules to enforce, or tools to enforce them with, because statistically it means they are going to make more mistakes. If a lawyer gets wrongly charged with an ethics complaint, even if he is found not to have done anything wrong, the complaint will remain on his record forever, and every time you search that lawyer’s name on Avvo it will be red flagged for some unspecified ethics violation. Once an ethics complaint is filed, it can’t be expunged, not if you’re innocent, not ever. The general public won’t know that the lawyer may have been found to have not done anything wrong, they will only see that there was an ethical inquiry. You might as well change your name to Hester Prynne, Esq. because your reputation as a lawyer will be no better.