Tuesday, April 20, 2021

DC Bar Rules Committee proposes new rule akin to Model Rule 8.4(g)

On the same day that the New York State Bar Association Committee on Standards of Attorney Conduct submitted a proposal to adopt a rule akin to Model Rule 8.4(g), the District of Columbia Bar Rules of Professional Conduct Review Committee submitted its own proposal to do the same.  

As I reported here, I really like the NY proposal which I think addressed the most important concerns regarding the Model Rule.  The proposal in Washington is better than the Model Rule in at least one important respect, but it is not as limited as than the one in New York.

The Executive Summary of the report accompanying the proposal explains the background: 

The D.C. Rules of Professional Conduct currently contain two rules that address harassment and/or discrimination: D.C. Rule 9.1, which prohibits discriminatory conduct that violates employment law; and D.C. Rule 8.4(d), which prohibits conduct that “seriously interferes with the administration of justice.” Comment [3] to Rule 8.4 clarifies that paragraph (d) prohibits “offensive, abusive or harassing conduct that seriously interferes with the administration of justice,” and may include words or actions that “manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” 

. . . .

In 2016, the D.C. Bar Rules of Professional Conduct Review Committee began studying whether the District should amend the D.C. Rules to adopt a provision similar to Model Rule 8.4(g). For reasons detailed in this report, the Rules of Professional Conduct Review Committee recommends adopting new proposed Rule 8.4(h) to expand the scope of the existing anti-harassment and anti-discrimination provision found in D.C. Rule 8.4(d), similar to Model Rule 8.4(g), but with some modifications.

The Committee reached this final proposal after publishing for public comment in 2019 a proposal to essentially adopt ABA Model Rule 8.4(g) as a revised D.C. Rule 9.1. The Committee received 52 comments in response which were largely critical of the 2019 proposed rule, principally, although not exclusively, on First Amendment grounds. Upon careful consideration of the issues identified in the comments, the Committee revised its proposal.

The new proposal leaves Rule 9.1, a rule that has existed in the District for 30 years without issue, unchanged. As with ABA Model Rule 8.4(g), proposed Rule 8.4(h) moves the D.C. Rules’ current prohibition on harassing and discriminatory conduct from a comment to Rule 8.4 to a “black-letter rule” that, like Model Rule 8.4(g), sets a standard for how members of the D.C. Bar should interact with others with respect to the practice of law.

Currently, D.C. Rule 8.4(d) addresses discrimination and harassment only in the context of the administration of justice, which narrows the reach of the rule to a lawyer’s conduct while representing a client before a tribunal. Proposed Rule 8.4(h) includes harassing and discriminatory behavior by a lawyer directed at another person with respect to the practice of law, which would include such abusive conduct that occurs outside of a courtroom and/or the representation of a client.

. . . . 

Proposed Rule 8.4(h) is not intended to chill speech on controversial topics, but rather to prohibit harassing and discriminatory conduct directed at another person or persons by a lawyer with respect to the practice of law.

As proposed, the new Rule 8.4(h) and its comment read:

It is professional misconduct for a lawyer to:


(h) engage in conduct directed at another person, with respect to the practice of law, that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.


. . . . 

[3] Paragraph (h) reflects the premise that the concept of human equality and respect for all individuals lies at the very heart of our legal system. A lawyer whose conduct demonstrates hostility or indifference toward the principle of equal justice under the law may thereby manifest a lack of character required of members of the legal profession. Discrimination and harassment by lawyers in violation of the Rule undermine confidence in the legal profession and the legal system.

[4] Discrimination includes conduct that manifests an intention to treat a person as inferior, to deny a person an opportunity, or to take adverse action against a person, because of one or more of the characteristics enumerated in the Rule. Harassment includes derogatory or demeaning verbal or physical conduct based on the characteristics enumerated in the Rule. In addition, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. Antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (h).

[5] Conduct with respect to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association events and work-related social functions.

[6] A lawyer’s use of peremptory challenges is exclusively addressed by Rule 3.4(g). A lawyer does not violate Rule 8.4(h) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

As in the proposal in New York, this proposed rule tries to solve the vagueness and First Amendment issues by limiting it to conduct “directed at another person.”  This attempts to eliminate the possible interpretation of the rule as regulating protected speech about general topics or even general groups of people simply because someone in the audience may find the comment offensive.  That is a good thing, but I am not so sure the language is clear enough.  I would prefer it if the rule said "at another individual person."

The new proposed rule, however, includes two categories that may be problematic.  It is not clear to me what is meant by “family responsibility,” and “socioeconomic status.”  Suppose a lawyer made a comment at a firm meeting discussing a specific client saying “we should stop representing that rich bastard.  I am tired of seeing them get all the breaks.”  That statement expresses bias against rich people because of their socio economic status, and, therefore, seems to violate the rule.  Yet, it seems to me that statement is protected speech.  That is a problem.

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