JURIST Guest Columnist L. Ali Khan of the Washburn University School of Law discusses the rationale behind some proposed changes to the ABA Model Rules of Professional Conduct…

The American Bar Association (ABA) has proposed a model rule to discipline lawyers who in the practice of law harass or discriminate, by speech or conduct, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. This proposed rule constitutes Rule 8.4(g) of the Model Rules of Professional Conduct (the Rule). Since each state drafts its own rules of professional conduct for lawyers, each state is free to adopt with or without amendments, or not to adopt any proposed rule.

This commentary urges state legislatures, state bars, and state supreme courts to seriously consider the adoption of the Rule and reject the misguiding assertions that the proposed rule violates the lawyers’ First Amendment rights of free speech, free exercise of religion, and freedom of association. The Nevada Supreme Court has scheduled a public hearing on July 17, 2017 to determine whether Nevada should adopt the Rule.

Rule’s Rationale
As a matter of policy, the Rule assures that the legal profession functions for all participants, including vulnerable groups, such as racial and sexual minorities and persons with disabilities. Inclusion and accountability, rather than exclusion and immunity, are the core values the Rule seeks to protect.

The Rule democratizes access to all persons involved in the legal profession to play their assigned roles without fear of harassment and discrimination. No lawyer –partner or associate, renowned or unknown — has any constitutional or statutory right in the practice of law to harass clients, witnesses, judges, court officials, support staff at the law firm, or colleagues on the basis of race, color, religion, national origin, gender, or any other unlawful classification. Nor does a lawyer have any constitutional or statutory right to engage in unlawful discrimination in the employment of new lawyers and staff.

Furthermore, the Rule affirms that no lawyer is immune from the reach of law and ethics. While a lawyer is responsible for criminal and civil liability arising from harassment and discrimination, the lawyer must also face professional discipline, just as a lawyer faces discipline with respect to other unlawful acts. It is a well-established rule in American jurisprudence that lawyers surrender some (not all) of their First Amendment rights when they choose to practice law. The Rule does not diminish anymore the First Amendment rights of speech, religion, and association as some mistakenly argue as they urge states not to adopt the Rule.

Opposition to the Rule
Although the Rule is drafted with circumspection, and provides the necessary exceptions, some lawyers and lawmakers do not support the rule. Some lawyers fear the Rule is too broad, reaching private speech and conduct. Some argue that conservative lawyers who believe in conventional morality will be accused of discriminating against gays. Some fear potential ethical violations of the Rule if their law firm lacks diversity. Some contend that the Rule promotes political correctness.

According to a resolution of the Montana State Legislature, the Rule is “a cultural shift” that must be rejected. It is unclear what Montana lawmakers mean by a cultural shift. Does the Montana Legislature wish to retain the “old culture” under which women, minorities, gays, and persons with disability were excluded from law practice and faced discrimination and harassment in courts and at law firms without legal recourse? Does the Legislature wish to retain the old culture under which senior partners, armed with power and privilege, could without fear of punishment sexually harass young female lawyers at social gatherings and in happy hours after a “tough day” at the firm or in the court?

In an opinion [PDF] written in response to a state senator’s query, the Attorney General of Texas has falsely concluded that the Rule presents serious constitutional concerns. Texas has already adopted a rule of professional conduct that disciplines lawyers who manifest “bias and prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in (an adjudicatory proceeding) in any capacity.”

Unfortunately, the Texas Attorney General’s opinion is a regretful piece of lawyering. Invoking legal truisms, the Attorney General claims that the Rule is overly broad. However, he does not point out which part of the Rule is over;y broad. Most certainly, “harassment and discrimination” are not as overly broad as “bias and prejudice” found in the Texas rule. If the Attorney General is referring to the “the practice of law” as an overbroad term in the Rule, he should know that a comparable rule in New York, a state with hundreds of thousands lawyers, uses precisely the same term. Other states, which have already adopted anti-harassment and anti-discrimination rule, find no unconstitutionality in using the term “the practice of law.” California, another state with hundreds of thousands lawyers, goes even further and prohibits unlawful discrimination in “management or operation of a law practice,” a much broader term than “the practice of law.” The ABA President has correctly pointed out that the Texas Attorney General is misleading the public and legal community.

Endorsement of the Rule
The Rule is by no means an ABA invention out of the blue. Over the years, many states, both Red and Blue on the political landscape, have adopted tougher comparable rules long before the ABA approved the Rule in 2016. For example, Iowa disciplines its lawyers for sexual harassment and discrimination in “the practice of law.” Indiana defines misconduct in terms of bias and prejudice in a (lawyer’s) “professional capacity” aimed at persons on the basis of “race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.” Michigan disciplines lawyers for “discourteous and disrespectful treatment” in the “legal process.” These formulations are much wider in scope and throw a much broader net of misconduct as compared to the ABA Rule. None of these capacious state rules has been declared unconstitutional under the First Amendment.

Note that the ABA unanimously approved the Rule after due deliberation, discussion, and scholarly feedback by constitutional experts and ethicists. The Commission on Disability Rights, Commission on Sexual Orientation and Gender Identity, Commission on Women in the Profession, and others co-sponsored the Rule. Likewise, numerous ABA committees, including the Standing Committee on Professional Discipline, the Standing Committee on Client Protection, the Standing Committee on Professionalism, and the Center for Professional Responsibility Diversity Committee, and others have endorsed the Rule.

The Rule reaffirms an existing notion that lawyers are not obligated to accept certain cases. Nor can they be disciplined under the Rule if the alleged harassment or discrimination is unintentional, accidental, or even negligent. A judicial finding of any discriminatory peremptory challenges in the selection of a jury is also exempt from the Rule. There are other safeguards provided in the Rule and Comments so that the practice of law is not divested of vitality.

Under the Rule, lawyers remain free to represent Klansmen, misogynists, gay-bashers, Shariah-critics, religious bigots, and harassers involved in criminal or civil cases, just as lawyers are free to represent murderers, drug dealers, arsonists, terrorists, and Wall Street movers and shakers who commit securities fraud. Access to courts and legal justice is the right of all persons. Lawyers, as the guardians of law, provide the necessary representation to all individuals and businesses regardless of the clients’ history, ideology, bias, or prejudice. The Rule does not diminish legitimate advice or advocacy.

In preserving integrity of the legal profession, however, the Rule simply demands that in the practice of law lawyers refrain in their own conduct from harassment and discrimination of women, minorities, persons with disabilities, and other vulnerable persons in the role of clients, witnesses, opposing attorneys, court officials, associates in the law firm, paralegals, and others. Admittedly, the Rule may reach lawyers outside the courtroom including law firm gatherings, ABA meetings, and other law-related functions. This extension of the Rule infuriates a small section of lawyers who believe that the ethics of professional conduct should remain confined to adjudication or dealings with clients. This indignation wrongly believes that being a lawyer is merely wearing a transient cloak in a court of law, and no more.

L. Ali Khan is a professor at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries. In addition, he has regularly contributed to JURIST since 2008.

Suggested citation:L. Ali Khan, Disciplining Lawyers for Harassment and Discrimination, JURIST &#8212 Academic Commentary, July 10, 2017, http://jurist.org/academic/2017/07/l-ali-khan-aba-rule-change.php.