Monday, August 15, 2016

ABA amends model professional conduct rules to prohibit discrimination. What took it so long?


Last week, during its annual meeting, the American Bar Association amended its model rules of professional conduct to incorporate employment discrimination into attorneys’ ethical mandates.

Model Rule 8.4 now reads as follows:
(g) 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.
Kudos to the ABA for recognizing that an attorney places his professional ethics in question when one discriminates against or harasses co-workers, clients, other members of the profession, court personnel, witnesses, or anyone else during a business or social activity related to the practice of law. Kudos also to the ABA for going further in its model rule than Congress has been willing to go, by incorporating sexual orientation and gender identity into its prohibition.

While I am proud that my profession has taken this important step, I am dismayed that it has taken so long. By way of comparison, Ohio, my jurisdiction, has had similar prohibitions since the mid-1990s. I have not practiced law without knowing this obligation as part of my professional ethics.

Ohio Disciplinary Rule 1-102(B), which was in effect until January 31, 2007, provided:
A lawyer shall not engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability. This prohibition does not apply to a lawyer’s confidential communication to a client or preclude legitimate advocacy where race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability is relevant to the proceeding where the advocacy is made.
Ohio Rule of Professional Conduct 8.4(g), in effect since February 1, 2007, similarly provides:
It is professional misconduct for a lawyer to engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.
Unlike Ohio’s rules, which are binding on Ohio attorneys, the ABA’s model rules are just that, model rules. They serve as a guide for state regulatory bodies and carry no authority. 

Nevertheless, as one ABA delegate aptly stated, “The states have not waited for the ABA to act. They have been laboratories of change…. It is time for the ABA to catch up.” I’ll go one step further. It’s time for us all to catch up. Discrimination of any kind is unacceptable for any reason. I’m pleased that the ABA has finally stepped up to the plate. I just wish it hadn’t taken so long to do so.

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