Thursday, January 21, 2016

Should the ABA adopt a new rule making it misconduct to engage in discriminatory conduct?

As I reported back in August, the ABA is considering an amendment to Rule 8.4 of the Model Rules of Professional Conduct to address issues of harassment and discrimination based on a proposal by the ABA Standing Committee on Ethics and Professional Responsibility ("the Committee").  The proposed amendment (and other materials in support of the proposal) are available here.

According to the Committee, at least 24 U.S. jurisdictions have adopted some form of anti-bias, anti-prejudice and/or anti-harassment rule as part of their lawyer conduct rules. But the rules vary significantly and the Committee is trying to find a good way to compromise all the concerns and interests.

There is no question that manifestations of prejudice, bias and discrimination are always a cause for concern.  However, as I have been thinking about the issue, I find myself torn.  I understand the interest behind the proposal but I also have some concerns about the proposed rule.  I am working on a longer article on this, but while I do so, I thought I would share some of my initial thoughts on the matter.

After I was done writing this, I realized the post came out to be much longer than I expected - and probably rambling too - so let me insert a few bullet points here before you start reading the whole thing:

1.  The Model Rules do not address issues related to bias or discrimination in the practice of law, and the current approach to the issue expressed in the comment to Rule 8.4 is actually worse than the Committee believes it to be. 

2.  Thus, if you think there ought to be a rule on this topic, there certainly is a good argument for enacting one.  Yet the question is whether there ought to be a rule to begin with.

3.  I am not opposed to enacting a rule, but I am also not convinced that we need one.

4.  If we are going to have a rule, the proposed rule is a good start but needs to be adjusted.

5.  At the very least, the rule should make it part of the rule (as opposed to the comment) that it won’t apply to conduct or speech protected by the First Amendment. 

6.  The rule should make clear how it can, or can’t, be applied to the decision to accept or reject clients.  Personally, I think the rule should not apply to the client selection process.

Now here are the details:

The current state of the law

Current Model Rule 8.4(d) (and most, if not all, of its state equivalents) consider misconduct to engage in conduct that is "prejudicial to the administration of justice."  In addition, paragraph 3 of the comment to Model Rule 8.4 states that “[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. ...”

There are several problems with this comment.  First, it suggests there could be discipline on the basis of speech.  Note that it talks about manifesting “by words or conduct.”  Manifesting means expressing and expressing an idea by words is, by definition, speech.  So I have a problem with the suggestion that the state can discipline an attorney for expressing an idea, even if that idea is offensive to some.  It seems to me that if the First Amendment stands for something, it stands for the proposition that the state has very limited authority to regulate speech simply because someone might find that speech offensive.

Second, contrary to what the Standing Committee on Ethics and Professional Responsibility says in its memo in support of the Draft Proposal, the comment does not say that expressing bias or prejudice while representing a client is prejudicial to the administration of justice (and thus could subject the lawyer to possible discipline).  It only states that if engaging in that conduct is against the administration of justice then the lawyer could be subject to discipline for violating the ban against conduct that is against the administration of justice. 

The current comment, thus, suggests that under certain circumstances knowingly manifesting bias or prejudice would not constitute conduct against the administration of justice and, thus, would not be the basis for discipline. For this reason, if one thinks that discriminatory or biased conduct should always be considered to be misconduct, given what the current comment actually states, the argument for a new rule is actually stronger than the one currently advanced by the Committee. 

But, putting aside that initial misunderstanding as to what the current comment says, the question remains whether it is a good idea to amend the rule as proposed.

What is the policy behind the proposal?

In support of the proposal, the Committee cites a resolution drafted by members of the Oregon New Lawyers Division which states, among other things, that “[t]here is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct.”

I totally agree that there is a need for a cultural shift, but I am still unclear as to why it needs to be captured (or why it would be a good idea to capture it) in the rules of professional conduct.

In response to that question, the resolution continues saying that the need arises “because the Model Rules are supposed to ensure the integrity of the legal profession.”

But is that really the purpose of the rules of professional conduct?  According to the Scope section of the Model Rules, the Rules of Professional Conduct “simply provide a framework for the ethical practice of law” and the basis for the imposition of discipline when the conduct of a lawyer violates that framework.  I have never been particularly fond of arguments for discipline based on a need to protect “the integrity of the profession.”  What is “the integrity of the profession” if not a subjective concept based on a value judgment the state seems to want to impose upon all members of the profession?  Isn’t it as vague as “the appearance of impropriety” which has been generally abandoned as a standard for evaluating what ought to be considered misconduct?

As has been argued elsewhere, discrimination is a social evil and the Rules of Professional Conduct are not necessarily designed to address social evils; they are yardsticks by which we measure the fitness of lawyers to practice.  

Now, one might say that someone who believes in discrimination or who behaves in a discriminatory manner is not fit to practice law.  Yet, I don’t think that’s the case.  Aside from the much criticized case involving white supremacist Matthew Hale in Illinois, denying someone the right to practice law because they believe (or have expressed that they believe) in discrimination could be interpreted to be a violation of the First Amendment.  Also, lawyers are allowed to discriminate in certain aspects of the practice of law (more about that later). 

Thus, I am concerned about possible regulation of speech based on a value judgment about whether a certain expression is an affront to the “integrity of the profession.”  This was the kind of reasoning used to exclude Matthew Hale by a panel that found that his "publicly displayed views are diametrically opposed to the letter and spirit" of the Rules of Professional Conduct” and that “in regulating the conduct of attorneys, certain "fundamental truths" of equality and nondiscrimination "must be preferred over the values found in the First Amendment."

The proposed new rule 8.4 seems to be based on a very similar notion that there is a fundamental value, which can be enforced through the disciplinary process, in equality and nondiscrimination.  

Freedom of speech

One concern over adopting “anti-bias” rules is that if the rule is not drafted carefully it may be subject to attack for regulating constitutionally protected speech, even if the state can, and already does, regulate attorneys' speech in other contexts.

Take for example a recent case in New York in which a lawyer was suspended for, among other things, having made “patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys.”   The case is Matter of Teague and it is available here.

The opinion does not really explain the context of the statements other than saying they were uttered “to attorneys.” The court suggests that the attorney in question “spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse,” but it is not clear, when or where, those epithets were uttered.  Again, the decision seems to be based on the notion that certain expressions are inherently unacceptable and, thus, can subject an attorney to discipline.

The court concluded that “Respondent’s conduct should not and will not be tolerated.”  This conclusion is fine as to the other “conduct” involved in the case (disruptive conduct in hearings) and maybe for conduct that can be argued to be prejudicial to the administration of justice (as I assume was the case in that case), but not necessarily as to the content of the attorney's speech in all circumstances.

Would it be permissible for the state to discipline a lawyer for expressing bias at a social event?  ...during conversation with a stranger at a bar? ... during a political rally?  Would it be permissible for a state to discipline an attorney because the attorney is a member of a group that expresses bias against others? ...or a member of a church that expresses bias against women or other religious groups?

Smartly, the drafters of the new proposed rule eliminated the reference to expressions by words (although the new language does not necessarily limit the rule’s application to conduct) and added a new statement in the comment to the rule explaining that the rule does not apply to conduct protected by the First Amendment.

Thus, according to the comment, which is elsewhere described as a guide to the interpretation of the rule, a lawyer could not be disciplined for prejudiced, biased or harassing speech if the speech is "unrelated to the practice of law or protected by the First Amendment."

I like that, but how would we apply this standard to a lawyer who rejects a case because the prospective client is gay and the lawyer says he objects to gays on religious reasons?  Isn’t the lawyer engaging in discriminatory conduct?  Does this mean that some discriminatory conduct is permitted by the rules?  If so, how is that different from the current approach, which says some discriminatory conduct is not prejudicial to the administration of justice?

And then there is the fact that not all jurisdictions adopt the comments.  What would happen in such a jurisdiction?  Could the use of the word “harass” be interpreted to apply to speech?  After all, one can harass someone else by expressing offensive speech.  Could the Matthew Hale denial of admission then become support for the notion that there are certain fundamental values, including a value in non discrimination, that could be enforced by the imposition of discipline?

Here is another problem.  As currently drafted, the rule says it is professional misconduct to “harass or knowingly discriminate.”  Doesn’t this mean that there can be discipline if you unknowingly harass someone?  This is a dangerous proposition.  What if a lawyer is accused of engaging in “microaggressions,” which have been defined as happening below the level of awareness of well-intentioned members of the dominant culture?  Does the fact that the microaggression is expressed with words by definition place it under the protection of the First Amendment and, therefore, outside the reach of the proposed rule?  What if the microaggression is not expressed but the result of conduct?  Will disciplinary agencies need to go into interpretations of what was meant by a certain conduct or attitude and whether it can be interpreted to be offensive to the complainant?
For an article critical of the concept of microaggressions go here. For an article critical of using microaggressions as the basis for disciplinary actions (in a context other than law) go here.

The Committee’s memo in support of the proposed new rule states that “[t]he terms “harassment” and “discrimination” are defined terms under law; they refer to the adverse, negative consequences of conduct that manifests bias or prejudice.”  Yet, the Committee does not state which law, statute or doctrine should be used to define the terms and the definition it provides does not adequately limit what could be a very broad interpretation of the concepts, including the notion of microaggressions.

In contrast, Illinois Rule 8.4(g) holds it is misconduct to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.  In this way, the rule of professional conduct limits its application to conduct that is determined to be discriminatory by other defined and applicable statutes and standards. This seems to be preferable than to base the determination of what is discriminatory on whether it is offensive to the integrity of the profession.  For a discussion of this issue under California law, go here.

Duty to report misconduct?

Moving on...  Here is another concern.  Under Rule 8.3 attorneys have a duty to report misconduct of other attorneys under certain circumstances.  Would attorneys now be subject to discipline if they don’t report another attorney’s offensive conduct?  What if the conduct is offensive to another person but not to the attorney who fails to report it?  And what if the conduct is part of an expression by words?  (Note how much of the problem for me keeps coming back to the issue of the protection of speech vs. conduct and the interaction with the First Amendment.  Is the end result that we can impose discipline for discriminatory conduct but have to tolerate discriminatory speech?)

The ABA recently asked readers to post whether they had ever heard sexist comments at work.  You can see the responses here.  How many of these would trigger the proposed rule and, therefore, the duty to report by those who heard the comments?  Or, again, is the fact that they were "comments," which by definition is different from "conduct" mean that comments don't count? 

Is the proposed rule too broad?

Shouldn’t certain types of discriminatory conduct be subject to discipline?  Sure.  There are plenty of examples out there of lawyers who have been duly disciplined for harassing and discriminatory conduct.  But usually the conduct is also a violation of other regulation or statutes, and there didn’t seem to be a need to create new rules to impose discipline.

The proposed new rule not only creates a specific rule, it uses language that expands on the reach of the current comment.  Whereas the current comment to Model Rule 8.4 applies to conduct “in the course of representing a client,” the new rule would apply to “conduct related to the practice of law.”

As the Committee explains in its memo in support of the proposal, there are arguments for and against this change, but it determined that the arguments for the new language is more compelling.

The question for me is whether the new rule, with the new language, would make a difference.  It seems like it would, but not necessarily by creating new situations in which discipline would be available.  Take for example a case in which a lawyer sexually harasses a law firm colleague.  Currently, this situation could result in discipline in one of two ways.  First, discipline could be imposed as the result of a finding, after whatever procedure applies, of an actual violation of the law.  This would require the person who suffered the harassment to bring a complaint, and for that claim to be resolved through the proper process.  In the alternative, the disciplinary agency could impose sanctions based on a finding that the conduct should be deemed to be “prejudicial to the administration of justice.”  One might think this is a stretch, but there are plenty of cases out there that have resulted in discipline for conduct based on this standard.

To avoid having to stretch the use of the notion of “the administration of justice,” however, it might not be a bad idea to create a new rule.  This also eliminates the dependency on other procedures before discipline can be imposed.  As the Committee has said, the fact that legal remedies exist for those who suffer workplace harassment or discrimination at the hands of lawyers isn't reason enough to exclude that behavior from the scope of the proposed rule.

The biggest change the new rule could create in a situation like this one is that the person who was harassed does not even need to complain at all for a claim to be initiated.  If the conduct is observed by another lawyer, presumably that lawyer has a duty to report it and a disciplinary action could be initiated based on that observation.  Obviously, without the corroboration or cooperation of the person who was harassed the case would be weak, but that is a different issue.

The point here is that the expansion of the language in the proposed new rule could have the effect of bringing more conduct within the application of the rule; but only as long as the conduct is not protected by the First Amendment or exempted by the rule itself.  Suppose that a lawyer gets drunk at a firm party and directs homophobic or racial slurs at a co-worker.  Would the lawyer be subject to discipline?  Probably not, whether under the current state of the law, nor under the new proposed rule.

Are lawyers allowed to discriminate when choosing clients?

I mentioned above that one possible problem with the new rule could be the fact that lawyers are allowed to discriminate in certain aspects of the practice of law.  This is particularly true when it comes to selecting clients.  It is generally accepted that lawyers are free to reject the representation of prospective clients for any number of reasons.  Some firms actually do so based on gender.  Take for example this law firm, or this one, for example.

By choosing to represent only men, or women, a firm, by definition is engaged in discrimination.  It may be permissible discrimination, but discrimination it is.  The question is whether the new rule recognizes a distinction between discrimination that is permissible or whether it would ban the kind of practice engaged in by firms that specialize in representing men or women in divorce cases.

This question reminds me of the debate generated by Stropnicky v. Nathanson, a case in which a Hearing Commissioner for the Massachusetts Commission Against Discrimination ruled that a woman lawyer could not refuse to represent men in divorce actions under the state's public accommodation statute.  The lawyer was fined, but she was not subject to discipline.  Under the new rule, presumably she would be.

Stropnicky generated a healthy debate on whether the application of a state’s anti-discrimination statute to a lawyer's decision not to represent a client on the basis of gender violates the First Amendment.  For an article arguing that it does, go here.  For more articles, mostly supporting the lawyer’s right to reject clients even if doing so could be considered to be discriminatory, go here and here.

The proposed new rule does not address this issue directly other that by saying in the comment to the proposed rule that the rule does not apply to activities protected by the First Amendment. But since it is not clear that discriminating when choosing client is, in fact, protected by the First Amendment, it is also not clear whether the rule would ban this aspect of the practice of law.

The proposed new comment also states that the new rule does not prevent a lawyer from rejecting a case under Rule 1.16 which allows an attorney to refuse or withdraw from representation.  However, again, this seems inconclusive since it is not clear that rejecting someone on the basis of gender would be considered to be valid under the rule that allows a client to reject a client for personal reasons.  Interestingly, one way to avoid discipline in a case like this would be for the lawyer to simply lie to the prospective client when explaining why the lawyer rejected the case, thus making sure the reason given falls within the acceptable reasons under Rule 1.16.  Yet, I have to think that it would be ironic, to say the least, that by encouraging lawyers not to discriminate, we could be encouraging them to lie so they could do what they believe to be best for them, their practice and their current clients.

Shouldn’t certain types of discriminatory conduct be subject to discipline?

One can make a good argument that engaging in discrimination is wrong in a moral sense.  It may even be the wrong way to attempt to support an ideological position (for articles on that point go here and here).  Yet, the question is not whether it is wrong.  The question is whether it should be considered conduct that should subject a lawyer to discipline.  Before Stropnicky, the generally accepted view in the profession was that it wasn’t.  Maybe that view changed since then, but I would like to see more evidence of it before making up my mind.


OK.  I think that is enough for now.  Please let me know what you think.  And let the Committee know too.  The Committee has requested comments on its latest draft proposal.  Written comments will be accepted until March 11, and the committee will hold a public hearing in San Diego on Feb. 7 to discuss the proposal.

In particular, the committee is seeking feedback on whether the new proposed rule should be limited to conduct that occurs “in the course of representing a client” as opposed to “conduct related to the practice of law,” which would cover the operation and management of a firm and thus implicate workplace discrimination or harassment.

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