Reproduced with permission from ABA/BNA Lawyers' Manual on Professional Conduct, 32 Law. Man. Prof. Conduct 355 (June 15, 2016). Copyright 2016 by the American Bar Association/The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
The ABA's ethics committee and other constituent groups have filed a resolution and report asking the policy-making House of Delegates to amend the Model Rules of Professional Conduct so that lawyers would be subject to professional discipline for engaging in workplace harassment or discrimination.
The House is scheduled to vote on the resolution in August at the ABA Annual Meeting in San Francisco. There are signals—such as the fact that public comment has thus far skewed negative—that the proposal could encounter significant resistance.
The proposed addition to Model Rule 8.4, which the ABA Standing Committee on Ethics and Professional Responsibility and several co-sponsors finalized in May, has attracted considerable support but prompted concerns from one major player: the ABA Standing Committee on Professional Discipline.
The discipline committee said in a March letter that it had “enforceability and substantive concerns” about earlier versions of the proposed change.
A person with knowledge of internal ABA debates said the discipline committee has reiterated those concerns in recent weeks, and that the ongoing debate could lead sponsors to modify the proposed amendment up until it's presented to the delegates.
The current version of the resolution proposes expanding the definition of “professional misconduct” in Model Rule 8.4 to prevent lawyers' harassment or discrimination against certain classes of persons while engaged in the practice of law. New Model Rule 8.4(g) would read:
It is professional misconduct for a lawyer to … (g) harass or discriminate 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 Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.
Changes to an existing comment to Rule 8.4, and the addition of two new comments to the rule, would clarify the scope of the black-letter prohibition.
One of the proposed comments states that the anti-discrimination and anti-harassment mandate applies to a broad range of conduct “related to the practice of law,” including conduct tied to the operation or management of a law firm and actions taken during “business or social activities” that are related to one's practice.
Beyond the Office
Wendi S. Lazar, a member of the ABA Commission on Women in the Profession, said it was important to adopt the proposed language to make clear that the anti-discrimination and anti-harassment rule applies to attorneys' conduct at law firm social events, professional conferences and other settings that should be considered “an extension of the workplace.” The commission is one of the sponsors of the resolution.
Lazar, a partner at the employment law firm Outten & Golden LLP in New York, said “there are a lot of extended workplaces” in modern-day legal practice. “And unfortunately these are the places where sexual harassment seems to occur,” Lazar told Bloomberg BNA.
Lazar cited testimonials she's read as a member of Commission of Women, where she leads the Sexual Harassment and Gender Based Bullying Committee. She said the accounts describe sexual harassment that occurred in various settings outside the office, such as “unwanted advances” from male superiors “in a limo driving home from a long meeting.”
A review of the public comments, and interviews with stakeholders, suggests opposition to the proposed amendment may focus on two issues.
Members of the Christian Legal Society, a nonprofit association of religious attorneys, submitted a large percentage of the public comments the ethics committee solicited and received after it first floated the proposed rule change last year.
In its own letterto the ethics committee, the CLS said its members are concerned “that the proposed rule will have a detrimental impact and a chilling effect on attorneys' ability to continue to engage in free speech, religious exercise, assembly, and expressive association in the workplace and the broader public square.”
Another critique concerns the scope of the new prohibition—specifically, expanding it to encompass harassment or discrimination in the workplace.
Comment  to Model Rule 8.4 currently states that the definition of “conduct prejudicial to the administration of justice” under Model Rule 8.4(d) can include discriminatory words or actions directed at certain minorities “in the course of representing a client.”
Proposed Model Rule 8.4(g) would replace that language with a broader provision in the rule itself that would prohibit harassing or discriminatory conduct “related to the practice of law.” That would expand the scope of the rule because “conduct related to the practice of law,” unlike conduct that occurs “in the course of representing a client,” would include actions connected to the operation and management of a law firm.
Douglas R. Richmond, managing director of the Risk Solutions component of insurance brokerage and risk management consulting firm Aon plc, told the ethics committee in a January letter that although he supported efforts to promote diversity and inclusion in the profession, he had several concerns about the proposal to amend Rule 8.4.
Richmond expressed qualms about incorporating employment and labor law principles into an ethics code governing attorneys' professional conduct.
One concern, he said, was “whether state disciplinary authorities are or can be equipped to handle allegations of the targeted misconduct if their supreme courts adopt proposed Model Rule 8.4(g).”
Richmond also said creating the new rule could lead individuals to try “to use the disciplinary process to advance a civil or administrative action” accusing a lawyer of harassment or discrimination.
“It is no answer to say that some jurisdictions have already adopted forms of proposed Rule 8.4(g) and have reported no problems along these lines because such anecdotes are not evidence,” Richmond wrote.
Additionally, Richmond said he questioned the need for a Rule 8.4(g) because “there are ample public and private remedies available for discrimination and harassment by lawyers and others.”
More Protection Needed
Lazar disputed the notion that attorneys and others who work in law firms already have adequate remedies to deal with harassment and discrimination in the workplace.
She said internal remedies are particularly elusive. “It is virtually impossible, in my experience as an employment lawyer representing lawyers, for victims of discrimination in our profession to openly complain about behavior,” Lazar said.
“Even if you are lucky enough to work in a 2,000-person firm that has an HR inclusion and diversity person in place, it is virtually impossible for that person to be able to go to an equity partner and say, ‘We have liability here, you’re out’ or ‘You need to change your behavior,’ or ‘You’re going to be suspended,'” Lazar told Bloomberg BNA.
“Those things actually happen every day in public companies,” she said. “I represent senior level executives every day, and that actually does happen.”
Lazar said that in corporate settings, it's often possible to eliminate harassment or discrimination through internal complaint processes. “The HRO [Human Resources Officer] goes to the CEO and says, ‘You can’t do this anymore. I’m going to go to the board. This is not behavior that a public company can have,’” Lazar said.
“But that doesn’t happen in the legal profession,” she said. “In my 23 years [of practice] I’ve seen it happen maybe once or twice in the hundreds and hundreds of cases I’ve had.”
Lazar said the inability to achieve internal solutions to harassment at law firms is exacerbated by legal barriers to obtaining judicial relief—including the widespread use of arbitration clauses in law firm employment contracts.
“[I]t has gotten way more difficult over the last 10 years to bring any kind of judicial complaint against a [law firm], because most lawyers are subject to and sign arbitration agreements,” Lazar said. “So there is no classical power that an associate would have to even threaten litigation that's public, because almost all of the litigation now in law firms is private—it's arbitration.”
Recent interpretations of EEOC rules have also made it “very hard for partners to ever bring any type of a charge under Title VII because they're not considered employees,” Lazar said, citing Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 19 Law. Man. Prof. Conduct 251 (2003).
To contact the reporter on this story: Samson Habte in Washington at @email
To contact the editor responsible for this story: Kirk Swanson at @email
For More Information
Full text of proposed Model Rule 8.4(g) and sponsors' explanatory report are at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/scepr_report_to_hod_rule_8_4_amendments_05_31_2016_resolution_and_report_posting.authcheckdam.pdf .
Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.