Diversity Column …1

Did You Know?

Nakimuli Davis-Primer

Article by Nakimuli Davis-Primer Featured Author


Did you know that the Model Rules of Professional Conduct were amended to make it professional misconduct for attorneys to knowingly engage in harassing or discriminatory conduct related to the practice of law?

The American Bar Association's House of Delegates approved resolution 109 last year to amend Model Rule 8.4 to add an anti-harassment and anti-discrimination provision. Pursuant to the amended Rule 8.4, "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.

The comments explain that "conduct related to the practice of law" includes, among other things, interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice; operating or managing a law firm; and participating in bar association, business or social activities in connection with the practice of law. The comments also explain that discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others and that harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. The ABA House of Delegates, which is comprised of members from almost every state bar association, explained that the black-letter rule is necessary because the prior comment that addressed "bias or prejudice" in the administration of justice failed to "cover bias or prejudice in other professional capacities (including attorneys as advisors, counselors, and lobbyists) or other professional settings (such as law schools, corporate law departments, and employer-employee relationships within law firms). The comment also [did] not address harassment at all, even though the judicial rules do so."

The rule change has been met with criticism from a number of organizations and commentators who believe that it infringes on attorneys' first amendment rights. Opponents contend that the rule would be used to chill a lawyer's expression of his or her views on religious, political, and social issues. Supporters contend that lawyers — as officers of the court — should be held to higher standards, that an anti-discrimination rule is necessary, and that the rule only relates to discriminatory and harassing conduct in the practice of law.

After amending Rule 8.4 to add subsection g, the ABA asked each state supreme court to adopt Model Rule 8.4(g). As of November 2017, however, only the state of Vermont has adopted the rule. Twenty-four states (and the District of Columbia) had previously adopted a rule that in some manner addressed bias or discrimination; thirteen states have a comment but not a rule; and the remaining states, like Mississippi, have neither a comment nor a black-letter rule that directly addresses harassment, discrimination, and bias as intended by Model Rule 8.4(g). Phoenix attorney, Don Bivens, who is a former chair of the ABA's Section of Litigation, stated that he "would like to think that all American lawyers would agree that harassment and discrimination should have no place in the practice of U.S. law" Linda Klein, immediate past president of the American Bar Association, stated that "[r]evised Rule 8.4 is a reasonable, limited and necessary addition to the ABA Model Rules of Professional Conduct." Nonetheless, opponents state that Model Rule 8.4(g) is too broad and would create a speech code.

Despite the varying views on the model rule, each state must decide whether to adopt the rule as written, whether to adopt alternative language, or whether to simply ignore the model rule as some opponents suggest. Consequently, more states are starting to consider the rule and some have requested public comment. Mississippi's current Professional Rule of Conduct 8.4 is identical to the model rule 8.4 except the state has not adopted (or yet considered) subsection (g).

  1. Nakimuli Davis-Primer is Chair of the Diversity Committee.