ABA issues new guidance for lawyers on model rule governing acts of harassment, discrimination

The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance July 16 on the purpose, scope and application of Model Rule of Professional Conduct 8.4(g).

The rule makes it professional misconduct for a lawyer to engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including sex, race, religion, sexual orientation and gender identity.

ABA Formal Ethics Opinion 493 explains that Rule 8.4(g) addresses conduct beyond the courtroom and in contexts that may not be connected to a specific client representation; for example, in a law office setting, during negotiations and at bar association, business and social activities related to the practice of law. The rule also forbids conduct that is not severe or pervasive, a standard often utilized for employment discrimination.

However, the rule is violated only by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature,” the opinion said. Conduct that violates the rule also harms the legal system, the opinion concludes, because enforcement is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”

The opinion also describes conduct that does not violate the rule. For example, the rule “does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation,” the opinion said.

To illustrate, the opinion offers hypotheticals explaining that statements at a CLE program regarding a race-conscious admissions practice or membership in a religious legal organization that advocates for the ability of private employers to discriminate on the basis of sexual orientation do not violate the rule.

The opinion reminds lawyers that the ABA Rules of Professional Conduct are rules of reason, and that decisions concerning specific conduct must be judged in context and from an objectively reasonable perspective.

Whether discipline is appropriate for a violation will depend on a variety of factors, including the severity of the violation, the lawyer’s disciplinary history, and the lawyer’s character and reputation.