Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 Georgetown Journal of Legal Ethics 195 - 238 (Spring, 2017) (146 Footnotes Omitted) (FULL ARTICLE)
On August 8, 2016, at the Annual Meeting of the American Bar Association (ABA), the ABA's House of Delegates voted on a Revised Resolution to amend the Model Rules of Professional Conduct by adding Rule 8.4(g) and three comments aimed at forbidding lawyers from engaging in harassment or biased conduct in law practice. Rule 8.4(g) provides:
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.
No one could be confident how the vote would go, although the resolution seemed likely to pass judging from the strong support it received in written and oral comments on earlier drafts. But more modest efforts to add an anti-bias provision to the Model Rules across twenty-two years had come to naught. There had been opposition to the early drafts of Rule 8.4(g), too, but it had largely receded by the time the final text came to a vote. The debate drew the attention of the media. So the public, not only lawyers, was watching and that could affect the outcome, although no one could say exactly how.
The Revised Resolution passed by voice vote. I estimate that the ratio of "yays" to "nays" was in the neighborhood of ten to one. No one spoke in opposition.
One reason the ABA adopted an anti-bias rule this time, after more than two decades of intransigence, may be the changing nature of the legal profession. Looking at the composition of the House of Delegates as it prepared to vote, I was struck by the large number of women and lawyers of color. The outgoing president was a black woman. The incoming president was a white woman. Following a steady increase beginning in the 1970s, female students today are nearly in parity with male students at American law schools. The percentage of minority law students has increased from 17.8% in 1993-94 to 26.9% in 2013-14. Anyone who has taught at an American law school during the last three or four decades, as I have, and who attended law school a decade earlier, has seen the dramatic change in the composition of the student population firsthand.
One might think that the ABA's adoption of a strong anti-bias rule means that those who worry about how women, minorities, and other groups are treated in law practice can now declare victory, order champagne, and go home. If only. The ABA vote is just the beginning. Lawyers are governed by rules adopted by courts in the jurisdictions in which they are admitted. To affect a lawyer's behavior, his or her jurisdiction must adopt an anti-bias rule or a functional equivalent. Today, twenty-four states and Washington, D.C., have such a rule, but none is as broad as the new ABA rule. Some are considerably narrower. The other states have no rule. Twelve states have only a comment. Fourteen states have neither a rule nor a comment.
This Article provides state courts and state and local bar groups with a history of the effort to include an anti-bias rule in the ABA's Model Rules, including the legislative history of Rule 8.4(g) itself, and an analysis of the various rules now in state ethics codes. This information should be useful as the states consider whether to adopt Rule 8.4(g) as written or amended. Or not at all.
One group of opponents of the new rule especially interests me. Its arguments did not get an airing in the House of Delegates, nor did its members ask to speak. I am referring to those who voiced religious objections to a draft of the rule. Similarities are apparent between these objections and objections by officials who on religious grounds resist issuing marriage licenses to same-sex couples and by businesses that refuse to bake cakes, arrange flowers, take photographs, or rent venues for same-sex weddings. These officials and businesses have so far lost claims based on the First Amendment's Speech and Free Exercise Clauses. It may be that a lawyer will hereafter cite the amendment to resist discipline under a rule like Rule 8.4(g). A court will then have to decide whether there is something about the lawyer-client relationship, unlike the relationship between a photographer or baker and a same-sex couple, that gives the lawyer a stronger constitutional claim. Although I will try to identify the legal issues a court facing religious objections will need to sort through, I am here primarily interested in asking another question: As a matter of policy, should a lawyer with a sincere religious objection to representing a particular client, or a client in a particular matter, be exempt from the ABA's rule because the attorney-client relationship is fiduciary and (in some sense) intimate, whereas commercial relationships are not?
Rule 8.4(g) is not a sop to political correctness. It responds to a real problem faced by members of the groups it aims to protect. The behavior it describes can cause harm. Judging by reported decisions only, bias and harassment in the practice of law is a persistent but not a pervasive problem. The ABA's Standing Committee on Ethics and Professional Responsibility ("the Ethics Committee"), the sponsor of Rule 8.4(g) before the House of Delegates, gave examples. I can add to them. Overwhelmingly, these decisions and surveys disclose that the targets of the conduct are predominantly women, one of the new rule's protected groups. The reported decisions suggest that biased conduct based on race or ethnicity occurs, but less often. Perhaps lawyers realize that racially-biased conduct is indefensible but do not view gender bias equally so.
Although the full extent of biased conduct is unknowable, it is also irrelevant. The reason to adopt the new ABA rule is not solely to provide lawyers with notice of the kind of harassing or biased conduct that will lead to discipline and then to impose discipline if warranted. Adding Rule 8.4(g) achieves two other worth-while goals. First, it tells the bar as a whole that its licensing authority deems the behavior the rule describes as unacceptable. A lawyer who looked at many current state ethics codes would not get that message because the codes have no rule or a quite narrow rule addressing biased or harassing conduct in law practice. Second, adoption of Rule 8.4(g) tells the public that the legal profession will not tolerate this conduct in law practice, not solely when aimed at other lawyers, but at anyone. The rule tells the public who we are.
Drafting an anti-bias rule, even the brief rule and comments that the ABA adopted, is harder than may first appear. Of course, it is easy to say that biased conduct has no place in law practice and the administration of justice. As a starting point, we can expect broad agreement for that general statement. Add harassment--including sexual harassment--and discrimination to the text and still, as a general statement, we can expect broad support. But when we venture into the details, the consensus may shrink. What is "harassment"? What groups should be protected? And while the words "bias," "prejudice," and "harassment" may have only negative associations in this context, what about "discrimination"? When we say someone is discriminating, we may mean it as a compliment.
Next, we may find disagreement over the circumstances in which the rule applies--for example, "in the representation of a client" or, more broadly, "in conduct related to the practice of law." Or maybe the rule should be narrower than either phrase and apply only in matters before a tribunal where rights are decided, because it is courts and other tribunals that we most want to protect from the fact and appearance of bias.
We may encounter both support and opposition to adding a culpable state of mind--for example, to forbid only "knowing" harassment or "intentional" discrimination. Without a culpable state of mind, the rule could be read to create strict liability, which may drain needed support. On the other hand, will requiring that harassment be knowing make it too easy for a lawyer to escape responsibility for conduct we want to curtail--or too hard for a discipline committee to prove a violation?
At bottom, we face two drafting challenges. First, what goal do we want the rule to achieve? Second, how should the rule be drafted to achieve that goal? Whether in a statute, an agency rule, or a contract, drafting is what lawyers do. The legal profession is one of words. Drafting is words on paper (or on a screen). Drafting demands clarity and the elimination of ambiguity so far as words allow. Mathematical precision is rarely possible. We must strive to draft a rule that identifies the behavior we mean to forbid and not the behavior we do not. Lawyers have drafted far more complicated rules and documents, including penal codes, the Internal Revenue Code, rules of evidence, bylaws and trust documents, and, of course, all the other rules in the Model Rules of Professional Conduct. While it may not be easy to draft an anti-bias rule, it is certainly possible. Once we do so, the question will be whether the draft can win support.
So why has the ABA, an organization of lawyers who are trained in drafting, had so much trouble writing a rule forbidding bias, harassment, and discrimination in law practice? Surely, no one can think that all of the behavior described here is acceptable, or that it does not harm the rule of law and the administration of justice for lawyers to act that way. Yet except for a brief (and meaningless) comment added to Rule 8.4 in 1998, no prior amendment to the Rules had managed to win approval or even get a vote in the House of Delegates. This is so despite the fact that in 2008, the ABA adopted what has come to be known as Goal III, one of four goals in the ABA Mission Statement. Goal III is entitled "Eliminate Bias and Enhance Diversity" and includes two "objectives":
1. Promote full and equal participation in the association, our profession, and the justice system by all persons.
2. Eliminate bias in the legal profession and the justice system.
As stated, my purpose is to aid lawyers and judges as they consider Rule 8.4(g).
Part I offers a brief history of the ABA's unsuccessful efforts to adopt an anti-bias rule.
Part II surveys the anti-bias provisions--rules and comments--now in some state professional conduct rules. The ABA's Code of Judicial Conduct has had an anti-bias rule since 1990. It was expanded in 2007. It addresses judges' own conduct and the conduct they must demand of lawyers who appear before them.
The judicial conduct rule is the subject of Part III. Part IV turns to the legislative history of Rule 8.4(g) itself. It analyzes the changes the Ethics Committee made in successive drafts of the rule.
Part V examines ten drafting decisions that confronted the Ethics Committee and that will confront state courts and bar groups as they review Rule 8.4(g).
Although written objections from religious communities were not debated at the meeting that approved Rule 8.4(g), they will likely be aired at the state level. These objections are the subject of Part VI.
Finally, Part VII explains why Rule 8.4(g) should survive a First Amendment overbreadth challenge. The Article ends with a Conclusion. I suggest that if you accept the first premise in the Conclusion, the remainder is all about execution.
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Elihu Root Professor of Law, New York University School of Law.