The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

In May of 2018, I wrote about the ABA’s new anti-discrimination and harassment rule, 8.4 g, which has been heavily criticized, and, in Tennessee, declared unconstitutional. Here, again, is the text:

“It is professional misconduct for a lawyer to… 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.”

Undeterred (and as I predicted), the always “woke” District of Columbia Bar is charging ahead with a version of the rule, and asking for comments from members (like me) on its proposed version, which would replace the current, much narrower anti-discrimination rule currently enforced, Rule 9.1. Here is the D.C. draft:

D.C. Rule 9.1 (Nondiscrimination and Antiharassment)

It is professional misconduct for a lawyer, with respect to the practice of law, to 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, 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.

Hmmmm.

  • The District replaced the ABA’s wildly vague “related to the practice of law” with the slightly less vague “in respect to the practice of law,” which is still broader than “while engaged in the practice of law.”
  • How is a lawyer supposed to know that conduct is sexual harassment when the law defines sexual harassment as “unwelcome” sexual advances? Does this mean that a lawyer who is surprised to find that is conduct was considered harassing by someone, a court agrees, may nonetheless be innocent of violating the new Rule 9.1 if he reasonably was surprised that the conduct was “unwelcome”?
  • What’s “legitimate” advice and “legitimate” advocacy?
  • If a lawyer accedes to a client’s discrimination, is that lawyer violating the rule? For example, let’s say that a law firm has a female client who has been sexually assaulted by multiple men, and will be unable to participate in her representation unless she has a female attorney she can work with, would that law firm by regarded as discriminating on the basis of sex if it assigned a female attorney to her? I don’t see why not. The rule prohibits discrimination, not “discrimination without a reason.”
  • Comment 2 of the new Rule says in part,

…Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

Is there another way to interpret this other than as a green light to a law firm to discriminate on the basis of race and gender as long as the race being discriminated against is white, and the gender is male? Are not “diversity” and “inclusion” code words for this process?

I’ll be submitting my comments on the proposed rule in the next few weeks.

Your input is welcome.

 

12 thoughts on “The District Of Columbia Bar’s Proposed New Anti-Discrimination And Harassment Rule

  1. Does the rule exempt religious conduct. If I recall, my state’s rule says you can’t be a member of a group that discriminates (or something like that), but it exempts religious groups (Knights of Columbus?); so, you can’t be a Klan member, but theCatholic Church is okay, even though they won’t marry same sex couples.

    Maybe I am thinking of s different but related rule.

    I can only think of the quote by Scalia(?): if you want to stop discrimination on the basis of race, you have to stop discriminating on the basis of race.

    Or, a title of an essay I like (maybe Scalia, maybe Thomas Sowell, maybe somebody else): “Affirmative Action: the Disease as the Cure.”

    I, of course, am a guilty racist. I often ask my Hmong clients cultural/race-based questions. That is because I know they are averse to Western style justice. They have a cultural ADR process that avoids publicity of disputes.

    Interestingly, one of my Hmong clients picked me because he is racist. He told me that he did not want a Hmong lawyer because they know the Hmong way. If you want to fight white people (my words; it was a landlord-tenant dispute), you need a lawyer who knows that system. (He also said that he believed I had been sent to him by the gods to protect him (which would really look good on my Avvo rating, if I can get him to write a review.))

    A recent dispute within an Indian (dot) family taught me a LOT about how they resolve disputes.

    And, I got a lot of flack from colleagues when I mentioned that a dispute between Hispanic parties might be the result of lack of education, as well as an aversion to written contracts. Apparently, a demand to put something in writing can be offensive in Hispanic communities because it suggests your word is not trustworthy (a view I share when I deal with other lawyers: I am as good as my word). The woke people could not stay quiet when I told the truth: a bunch of Hispanics got into a mess because (not out of bad will on either side) they did not follow the law and probably did not know what they needed to do to follow it.

    Anyway, because I deal with lots of immigrants (legal and illegal), I know that I need to treat them differently, and I know I need to know what they need for me to represent them.

    I like these rules, because lawyers need to be trusted as advocates. But, the less said, the better. John Adams (?) defended the Boston Massacre. It “should” not matter if you are a Klansmen, if you uphold the law and advocate for your client.

    That is the cornerstone of criminal law. No lawyer can sanction law-breaking (qualified for conscientious objectors), but we (I) fight for the rights of criminals. Sadly, too many criminal lawyers get swept into their clients criminality (Tom Hagen?)

    Bottom line: I do not like professional boards weighing in where they may not apply and where I am supposed to advocate for my clients which (as a confirmed Catholic) I try to do zealously.

    The Board requires nothing else from me.

    -Jut

  2. Jack said: “For example, let’s say that a law firm has a female client who has been sexually assaulted by multiple men, and will be unable to participate in her representation unless she has a female attorney she can work with, would that law firm by regarded as discriminating on the basis of sex if it assigned a female attorney to her? I don’t see why not. The rule prohibits discrimination, not “discrimination without a reason.”

    Not sure this could be classed as discrimination so much as a PTSD response. I understand what you’re driving at, but mental health issues sometimes preclude absolute egalitarianism.

    • Liam Neeson going out hunting for blacks could be a PTSD response. I don’t see how that changes what it is. The simplified question: if a client, for hwatever reason, feels more comfortable with lawyer of Type X, how is it not discrimination to accommodate that client?

      • You’ve answered your own question. It is NOT discrimination to accommodate a client, especially if there is a good reason for that client’s request. Fear of men is a very natural reaction to being gang-raped.

      • Let me further say that Neeson going ‘hunting’ was not PTSD. He had no trauma to respond to. He was seeking vengeance, no more, no less.

      • I would also go so far as to say that the clients discrimination is not the lawyers. The attorney or firm has no idea what is going on in the clients head. The client may be the most bigoted human imaginable, but the firm is not responsible for that. All they are responsible for is supplying the best representation possible.

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