In August 2016, at the Annual Meeting of the American Bar Association (ABA) in San Francisco, a new rule 8.4(g) of the Model Rules of Professional Conduct was adopted by the ABA House of Delegates and added to the Model Rules of Professional Conduct, stating that 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.
In the words of ABA Past President Paulette Brown:
“Lawyers have a unique position in society as professionals responsible for making our society better. Our rules of professional conduct require more than mere compliance with the law. Because of our unique position as licensed professionals and the power that it brings, we are the standard by which all should aspire. Discrimination and harassment … is, and unfortunately continues to be, a problem in our profession and in society. Existing steps have not been enough to end such discrimination and harassment.”
The ABA focus resulting in Model Rule 8.4(g) existed prior to the adoption of the new model rule. For example, ABA Goal III (adopted in 2008) is to “Eliminate Bias and Enhance Diversity.” Comments to the previous version of the rule indicated that misconduct included knowingly demonstrating bias when that conduct was prejudicial to the administration of justice. Model Rule 8.4(g) expands that concept to apply to the practice of law more generally, rather than primarily in courtroom settings. For additional information about past ABA efforts to address bias and increase diversity, see Introduction and Background on Page 1 of the Report to the ABA House of Delegates (Report follows the resolution).
New comments to the new model rule provide additional information:
- Comment 3 discusses behavior that would constitute discrimination or harassment.
- Comment 4 discusses “conduct related to the practice of law” in further detail and provides examples. This comment also describes efforts to promote diversity that do not amount to a violation of the model rule.
- Comment 5 discuses peremptory challenges, a lawyer’s choice of clients and work, and fees.