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.
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.