- Locate existing rule (8.4 or similar) and related comments under the rules of professional responsibility in your state.
- Review state rules to determine whether your state has any existing antidiscrimination language. If your state follows the model rules, start with Rule 8.4 and related comments. You may see antidiscrimination in comments to 8.4 or in in 8.4(d). If not/in addition, examine your rules for key words like “discrimination,” “race,” “gender,” and the like. See Status of Antidiscrimination Rules in Each State.
- Analyze existing language and look for differences, for example:
- Standard: The new Model Rule 8.4 uses “knows or reasonably should know” language while some state rules use a “knowingly” standard in their existing rules. See ABA Report to the House of Delegates, Including Revised Resolution Re: Addition of Rule 8.4(g), page 7, for a discussion of this issue.
- Scope: The new Model Rule 8.4 addresses discrimination in many contexts while some state rules are limited to issues arising in course of client representation and that are prejudicial to the administration of justice.
- Bases for Discrimination: Some states do not list as many bases for discrimination as the new Model Rule 8.4, e.g., ethnicity, gender identity, or marital status.
- Gather information about discrimination and advancement issues in your state, if available. Places to look: local women’s bar association(s), state bar diversity committees, local law schools. Also consider pointing to national information such as the National Association of Women Lawyers Survey or the National Association for Law Placement Report on Diversity. You can compare available statistics on lawyers in your state to broader U.S. Census data (see the white box in the navy blue bar to narrow data to your state) — See Need for Lawyers to Reflect Society under Section Four above as an example. You can also visit the ABA website here for lawyer population information by state.
- Consider potential interested and supportive people or groups, e.g., state/local women’s bar associations, state/local diverse lawyer associations, law schools, law firms, diversity committees, thought leaders.
- Discuss proposed adoption with interested parties.
- Use those conversations to anticipate and address potential issues, as well as arguments for/against adoption.
- Determine required steps to propose a change in your state, e.g., letter to the highest court, movement through state bar association ethics/other applicable committee.
- Consider additional methods of eliminating bias and increasing diversity.
- Consider hosting CLEs/discussion groups re: proposed adoption and related issues to help gauge reactions, identify additional supportive parties, anticipate and develop potential arguments for/against.
- Prepare applicable letter/proposal/motion to start the process. (See sample letter and sample language.)
Download Word file
- Be prepared with additional information, resources, and responses to arguments against adopting antidiscrimination language.
Please be sure to update WLN and NCWBA on your progress and success by emailing [email protected]