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.
- 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.