ABA Adopts Ethics Rule to Prohibit Discrimination and Harassment… and It’s About Time

August 10, 2016

In a Monday session during the American Bar Association’s annual meeting in San Francisco this past weekend, the ABA House of Delegates voted to approve a change to the Model Rules of Professional Conduct that will make it an ethical violation for attorneys to harass or discriminate in the course of their practices.

Under the new provision of Model Rule 8.4, it will be professional misconduct for a lawyer to:

“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.”

Along with other vocal backers in the ABA, I have passionately pursued adoption of this amendment, a measure that is necessary and long overdue.

History of the New Rule

As Congress, the U.S. Supreme Court, state legislatures and courts, and local municipalities increasingly enact and interpret laws to promote tolerance and extend civil rights protections to everyone regardless of their differences, Resolution 109 was a proposal to ensure that the ABA – the standard bearer and powerful voice of the legal profession in the U.S. – advance those same ideals and hold its members ethically accountable. It was supported by many of the Goal III entities, the Commission on Women, and other like-minded ABA entities.

Resolution 109 was introduced in December 2015 and was considered by its proponents to be a no-brainer. for reasons that seemed unimaginable to many, however, it faced formidable backlash. In the following months, opponents decried it as a violation of free speech and an encroachment on a lawyer’s ability to practice law as he sees fit. Some of the complaints from delegates and ABA sections involved concerns over the legitimate advocacy being construed as discrimination in the courtroom as well as a requirement that the behavior at issue be intentional. While There were passionate debates over the last few months and days leading up to Monday’s vote, discussion and consultations led to compromises over the rule’s black letter language and supporting comments, resulting in a win for all.

When it came time for the actual vote, the naysayers were silent. As the ABA Journal reported, Resolution 109 passed after 69 speakers argued in its favor, with no speakers in opposition.

In my law practice at Outten & Golden, I am privy to the most painful stories from lawyers who are mistreated, harassed, and undervalued – well educated, intelligent, competent professionals who are afraid to complain for fear they will lose their jobs and be blackballed from the practice. Female lawyers have had male colleagues expose themselves in conference rooms, been groped in limousines, and told they would not be promoted or receive choice assignments unless they agreed to have sex in the bathroom.

I proudly serve as a member of the ABA’s Commission on Women and have received addition al reports from women who were terminated from their jobs after reporting incidents of sexual harassment, with the law firms unwilling to punish male partners or take any action at all. As I told the Wall Street Journal (sub req’d), “I think it’s absolutely shameless that as lawyers we’re not the model for how businesses should run.”

What’s Next

To be clear, the ABA Model Rules are just that – a set of suggested ethics rules that state bar associations may adopt. following Monday’s vote, the ABA’s Policy Implementation Committee will now contact state supreme courts and state bar association ethics committees to request that they consider how the new rule might apply to their members and compare it to any existing antidiscrimination rules that currently exist. addition ally, the ABA Standing Committee on Ethics & Professional Responsibility will likely receive requests to interpret the new rule, and then decide whether to issue a formal opinion in response.

The work is not done, just as the fight continues against disparate treatment in the workplace, discrimination, harassment, and hostile work environments. But with the full force of the ABA and its 400,000 members, we are hopeful that all states will adopt the model language to protect the lawyers who practice in their jurisdictions.

The legal profession’s record on diversity and inclusion is, to be candid, abysmal. With few women equity partners in law firms and even fewer minority partners, lawyers who should be valued and protected are leaving the practice in droves because they feel undervalued and unprotected. Adoption of Resolution 109 is by no means an entire answer, but it recognizes that the professional has a problem and now offers a means to fix it.

Outten & Golden’s Wendi Lazar advocates in favor of Resolution 109 at the American Bar Association’s 2016 Annual Meeting