Discriminatory lawyers in a discriminatory bar: Rule 8.4(g) of the Model Rules of Professional Responsibility.

• Author: Wolanek, Caleb C.

Lady Justice is blindfolded; her servants are not. Instead, because they are human, their predilections and aversions abound. A central challenge of the legal system, then, is how to manage the inevitable tension between impartial justice and biased agents. In some situations, the response is a strict rule against bias. Judges, for example, must avoid even "the appearance of impropriety." (1) Similarly, the Model Code of Judicial Conduct prohibits membership in organizations that "practice[] invidious discrimination." (2) But in other situations, bias is allowed. For example, an attorney can escape court-appointed representation when "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." (3) We doubt the ability of attorneys to advocate for people or positions they find morally repugnant, and we recognize that clients will suffer from the resulting deficient representation. (4) More generally, attorneys need not volunteer to represent any particular client. (5) Even though this means some clients might not receive the most skilled attorney, it also means that lawyers have considerable ability to avoid clients of whom they disapprove.

The American Bar Association's most recent attempt to deal with the tension between bias and justice is Model Rule 8.4(g). (6) The Rule bans both "harassment" and "discrimination" by lawyers against eleven protected classes. It applies to essentially every aspect of an attorney's professional life--to "conduct related to the practice of law." (7)

There are two opposing reactions to this Rule. Some argue it is needed to prevent sexual harassment, invidious discrimination, and other evils. (8) Others criticize the Rule, claiming it will suffocate vigorous advocacy and exclude unpopular views from the legal profession. (9)

This Note ventures into that debate. Part I explores the two positions on Rule 8.4(g). Those who favor it desire to promote professional decorum, create an inclusive profession, and protect minority clients. Those opposed are concerned about chilling First Amendment activities and depriving clients with discriminatory views of effective representation. Part II then discusses how the Rule might be interpreted or amended so as to vindicate many of the Rule's objectives while satisfying many of the legitimate concerns about over-broad regulations. These amendments would narrow the definition of "discrimination," interpret broadly the existing protection for "legitimate advocacy," and restrict the scope of regulated activity. Finally, Part III addresses concerns that the proposed amended rule leaves too much room for discrimination. It argues that preventing harassment through informal means avoids concerns about establishing a "speech code" while still distancing the profession from discriminatory actions. At the same time, it allows the Bar to protect freedom of expression and the institutional diversity needed for meaningful discourse.

1. ARGUMENTS FOR AND AGAINST THE RULE

   The debate over Rule 8.4(g) occurs on two levels. One is interpretive: how far does the Rule actually reach? That is the focus of Part I.A. The other is substantive: should the Rule reach as far as it does? Parts I.B and I.C consider substantive arguments for and against the Rule.

   1. Rule 8.4(g) is susceptible to multiple interpretations

      We begin with the interpretive debate. Rule 8.4(g) states:

      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. (10) Unfortunately, the Rule itself does not define its key terms: "harassment," "discrimination," and "conduct related to the practice of law." For that, one must look to the comments. Comment 3 discusses what is meant by "harassment" and "discrimination," stating that:

      [D]iscrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). (11) Comment 4 defines "conduct related to the practice of law" to include "representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law." (12)

      Yet even with this commentary, substantial ambiguity remains about what the Rule actually prohibits. Under a narrow interpretation, the Rule mirrors existing non-discrimination and anti-harassment laws. (13) For example, sexual harassment is only actionable under Title VII of the Civil Rights Act of 1964 if it is "sufficiently severe or pervasive," (14) and the Rule may simply be an internal means of preventing what existing laws already proscribe. (15) Comment 3's reference to the "substantive law of antidiscrimination and anti-harassment statutes and case law" (16) supports this reading. Similarly, situating the Rule in the Model Rules of Professional Conduct, in a provision entitled Misconduct, one might conclude that the Rule focuses on conduct, not speech. (17)

      The narrow reading is not the only permissible one, however. Comment 3 says statutes and case law "may" guide the Rule's application--not that they "must." (18) And terms like "harmful," "bias," "prejudice," "derogatory," and "demeaning" are expansive. Under a sufficiently broad reading, "bias or prejudice" could extend to mere disapproval or criticism, and "conduct related to the practice of law" could include what is said between friends over lunch in the law firm cafeteria.

      Thus, the text is susceptible to multiple interpretations. Some who oppose the Rule tend to rely on a sweeping interpretation. By contrast, many who support it adhere to a narrower reading. (Of course, some could support even the most expansive reading of the Rule.) How one interprets the Rule's text influences how they view its substance. And those substantive discussions must take place--the task to which this Note now turns.

   2. The legal profession has a strong interest in preventing harassment and discrimination

      Substantively, there are at least three reasons for supporting Rule 8.4(g)--regardless of whether it is broad or narrow in scope. A central motivation appears to be protecting those who experience discrimination and harassment. The government already bans discrimination and harassment in some aspects of life, and "exclusion" is a cardinal sin to most in modern society. Codifying that moral judgment is quite understandable. Those who support the rule point out instances where attorneys have been sexually harassed or otherwise subject to odious discrimination. (19)

      A second reason is that discrimination and harassment may "undermine confidence in the legal profession and the legal system." (20) If attorneys make offensive remarks or treat others as inferiors, yet suffer no consequences, then those in protected classes will begin to doubt whether the legal system truly protects their interests. Just as institutions that failed to speak out against Jim Crow entrenched segregation, the Bar's failure to address discrimination supports discrimination. (21) Thus, if a lawyer turns away a would-be client based on race or religion, that individual would reasonably conclude that the legal system did not protect his interests.

      A third reason for the Rule is that lawyers have long been viewed as a quasi-aristocracy. (22) That means lawyers have obligations beyond those that apply to the broader community, and they ought to model acceptable conduct. (23) Therefore, the ABA House of Delegates adopted Rule 8.4(g). It is not alone: 25 jurisdictions already have rules restricting discrimination and harassment in some fashion, even if most do not go as far as Rule 8.4(g). (24)

   3. There are concerns about chilling First Amendment activities and legal representation

      As applied to the "harassment" aspect of the Rule, the above rationales are generally accepted. This might be because the term "harassment" conjures up legal standards about severity and pervasiveness, thus narrowing the zone of possible ambiguity. Laws against harassment have been applied, tested, and upheld over the years, so similar rules of professional responsibility ruffle few feathers. (25)

      Rule 8.4(g) is opposed so strongly, however, because of concerns about nondiscrimination. "Discrimination" is, by itself, nothing more than choosing between options. (26) The legal system only cares about discrimination when that choice turns on an impermissible basis; that is, when it is morally wrong. (27) So as society modifies the definition of what is morally wrong to include new behaviors, the Rule's prohibitions also change. Although this is a concern under a narrow interpretation of Rule 8.4(g), it is most prominent under the broad reading.

      Consider the example of a hypothetical public interest firm (call it "Attorneys for Marriage") that disagrees with Obergefell v. Hodges (28) on both religious and constitutional grounds. (29) If an AFM lawyer publicly criticizes Obergefell, she could easily violate Rule 8.4(g). Under a broad...