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ABA Delegates Overwhelmingly Approve Anti-Bias Rule

Bloomberg BNA — Samson Habte

Reproduced with permission from ABA/BNA Lawyers' Manual on Professional Conduct, 32 Law. Man. Prof. Conduct 481 (Aug. 10, 2016). Copyright 2016 by the American Bar Association/The Bureau of National Affairs, Inc. (800-372-1033)  http://www.bna.com

A vast majority of the ABA's policy-making House of Delegates voted in favor of a rule change that will make workplace harassment and discrimination a basis for professional discipline.

The rule change was approved by a voice vote on Aug. 8, the fifth day of the bar group's six-day annual meeting in San Francisco. Only a handful of “nays” were heard when ABA Resolution 109 was presented to the 589 delegates in attendance.

The delegates approved nearly every other resolution that was put before them on Aug. 8, and most proposals passed by similarly lopsided margins.

The resolution that drew the most opposition before ultimately passing was a change to the ABA's law school accreditation standards to remove a long-standing ban that prevented law students from receiving both pay and academic credit for externships.

In other action at the meeting, the delegates voted to:

▸morph the longtime Task Force on Trade in International Services into a new permanent standing committee;

▸urge courts and legislatures to adopt rules establishing an evidentiary privilege for communications between lawyer referral services and their clients;

▸reaffirm the ABA's commitment to lawyer referral services sponsored by state and local bar associations;

▸urge jurisdictions to adopt court rules or legislation authorizing the award of class action residual funds to non-profit organizations that improve access to justice for the poor; and

▸urge the U.S. President and members of the U.S. Senate to emphasize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity in the selection process for federal judges; and to urge federal appellate courts to do the same in the selection process for federal bankruptcy and magistrate judges.

Black-Letter Anti-Bias Rule

The margin of the vote approving Resolution 109 may have been the most surprising development at the Aug. 8 session.

The resolution drew criticism from political conservatives and religious groups from the moment it was floated in 2015 until just a few days before its passage.

One prominent critic was former U.S. Attorney General Edwin Meese III, who said in a March 5 letter to the ABA that the proposed rule “borders on fascism” and threatened “freedom, justice and religious liberty.”

The resolution was amended several times over the last year, and several speakers said the near-unanimity of the final approval vote was attributable to last-minute changes that assuaged the concerns of constituent groups that had expressed qualms about the proposal in its earlier iterations.

In its final form, the resolution called for the addition of a new provision—Model Rule 8.4(g)—that expands the definition of “professional misconduct” to include:

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.

Some 24 U.S. jurisdictions have already amended their ethics standards to incorporate some form of an anti-discrimination rule.

Arizona State University law professor Myles V. Lynk, the chair of the ABA's ethics committee, introduced the resolution by saying that the states “have been laboratories of change” and that “it's time now for the ABA to catch up.”

Personal Stories of Discrimination

Sixty-nine ABA members signed up to speak in favor of Resolution 109, while none signed up to speak in opposition.

All but a few of the scheduled speakers waived the opportunity to address the delegation.

Oregon attorney Mark Johnson Roberts did take the podium and related an anecdote about his own experience with workplace discrimination.

“Twenty-eight years ago, when I was a new lawyer, I was passed over by a law firm's hiring committee,” Roberts said. “They decided that a gay man couldn't be a litigator. Ten years later, I was their [state] bar president.”

Wendi S. Lazar, a member of the ABA Commission on Women in the Profession, also addressed the delegates. Lazar, a plaintiffs' side employment lawyer, spoke about female lawyers she has represented in sexual harassment cases.

“I would like to share with you some of their stories, because they are invisible to many of you, and their suffering has for the most part been in silence,” Lazar said.

Lazar said some of her clients were victims of “behaviors that are unspeakable.”

“My clients have had male colleagues expose themselves in conference rooms, grope them in limousines after a hard day in the office, and threaten them that if they would not have sex in the bathroom at a retreat, they would not be promoted to lead counsel in a litigation,” Lazar said.

“These women need protection, and they need a remedy,” Lazar added. “Firms don't want to punish their partners, and judges often are reluctant to police their own. So in the end there is no justice for victims of discrimination.”

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