Avoiding the Pitfalls: Ethical Interviewing for Lawyers and Law Firms
| Citation | Vol. 92 No. 2 Pg. 38 |
| Publication year | 2023 |
| Pages | 38 |
March, 2023
Ethical interviewing
Avoiding the Pitfalls: Ethical Interviewing for Lawyers and Law Firms
By J. Nick Badgerow
I. Introduction/Overview
Interviewing and hiring new lawyers is an interesting process. The firm is succeeding and growing so as to require the employment of a new lawyer to join the practice. Or a lawyer with the firm has moved on, requiring the engagement of a replacement. But, of course, new opportunities carry with them new challenges and risks.
Many are the articles and other resources that provide valuable and useful guidance and information on the proper and legal ways to interview and hire new employees, including lawyers.[1] This is not one of those resources.
This article will leave to others the mapping of the labyrinthine pathways leading to safe and legal hiring in general. Instead, this article focuses on the ethical implications connected with the hiring process, unique to attorney-employers.
Attorney-employers are, or should be, ethically bound to avoid discriminatory practices — apart from the general moral and legal requirements applicable to all employers. See Section II, infra. Conflicts of interest are of special concern for lawyers, and so their avoidance should be ensured in the hiring process. See Section III, infra. Law firms are responsible for the ethical conduct of all their subordinates, including their lawyers. See Section IV, infra. And all lawyeremployees are responsible to report any misconduct they observe in the acts or omissions of other lawyers in the firm and should be ready to commit to that obligation. See Section V, infra. This article will discuss these ethical aspects of the hiring process.
II. Do Not Discriminate
A. Discrimination Is Wrong. Of course, conduct and actions that discriminate against others on the basis of race, sex, religion, national origin, age, or disability are morally wrong.[2] Such conduct and actions are also legally prohibited in many instances.[3] But are such actions also unethical, such that they subject a lawyer-employer to disciplinary action? They should be. Say a lawyer has less than 15 employees, so as not to be covered by Title VII,[4]or even less than four employees, so as not to be covered by the Kansas Act Against Discrimination.[5]If not bound by these legal provisions, nor yet by moral scruples, are they then free to discriminate at will?
B. The Model Rule Prohibits Discrimination. The Model Rules of Professional Conduct expressly address the point. Rule 8.4(g) states: It is professional misconduct 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 advocacy consistent with these Rules.[6]
The Comment to Model Rule 8.4(g) explains further:
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.[7]
The ABA Model Rules included this concept as the prior Comment [3] to the prior Rule 8.4 since 1998, though Rule 8.4(g) did not yet include an express prohibition against discrimination:
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.[8]
Indeed, the new version of Rule 8.4(g) has not been adopted in many other states. Since its adoption by the ABA, only four states and the District of Columbia have adopted it.[9] There is particular resistance to the Rule's inclusion of the prohibition against discrimination on the bases of sexual orientation and gender identity.[10]
In those states where the rule has been adopted, lawyers have been disciplined for discriminatory or harassing conduct that violates the rule.[11]
C. Is The Model Rule Constitutional? Now, Rule 8.4(g) has not been without its controversy. In Greenberg v. Haggerty,[12] the Eastern District of Pennsylvania federal court found the rule to be unconstitutional.
This language will continuously threaten the speaker to self-censor and constantly mind what the speaker says and how the speaker says it or the full apparatus and resources of the Commonwealth may be engaged to come swooping in to conduct an investigation. . Therefore, the Court holds that the Amendments, Rule 8.4(g) and Comments 3 and 4, consist of unconstitutional viewpoint discrimination in violation of the First Amendment. Because the Court finds that Plaintiff has standing and that the Amendments constitute unconstitutional viewpoint discrimination, Defendants' Motion to Dismiss is denied.[13]
On the other hand, the Colorado Supreme Court has upheld the constitutionality of Rule 8.4(g).
We conclude that Rule 8.4(g) serves the state's compelling interests in regulating the conduct of attorneys during the representation of their clients, protecting clients and other participants in the legal process from harassment and discrimination, and eliminating expressions of bias from the legal process. The Rule is sufficiently narrowly tailored to serve these interests while limiting as little speech as possible. Moreover, Rule 8.4(g) is neither overbroad nor unconstitutionally vague. Thus, we conclude that the Rule is constitutional.[14]
D. The current version of Model Rule 8.4(g) (including its Comment [3]) and the 1998 Comment [3] to Rule 8.4 have not been adopted in Kansas.[15] These forward-looking provisions have not been adopted into the Kansas Rules of Professional Responsibility. Therefore, an ethics violation may not be charged against a Kansas lawyer on the basis of Model Rule 8.4(g). But should not a lawyer's conduct be based on higher standards than the threat of discipline under this particular rule?
E. What About Kansas Judges? The Kansas Code of Judicial Conduct,[16] provides several applicable rules. Canon 1 provides:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.[17]
Under Canon 1, Rule 1.2 then provides:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.[18]
Comment [5] to Rule 1.2 provides further insight.
[5] Actual improprieties include violations of law, court rules, or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.[19]
Canon 2 of the Judicial Code provides: "A judge shall perform the duties of judicial office impartially, competently, and diligently,"[20] and then Rule 2.3(B) more pointedly directs, in pertinent part:
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. ... [21]
And Comment [2] to Rule 2.3 provides further insight.
[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias. . .[22]
A Kansas case in point is In re Henderson,[23]where a judge engaged in a "pervasive" series of sexual remarks, jokes, and innuendoes toward court personnel and others. For this and other misconduct, the judge-respondent was suspended without pay for 90 days, with the additional unusual requirement that he "satisfactorily complete a course in sexual harassment, discrimination, and retaliation prevention training and one or more educational programs on the employment law applicable to such conduct."[24]
F. What About Kansas Attorneys? As for Kansas attorneys, while Model Rule 8.4(g) has not been adopted in Kansas (or in many other jurisdictions), other Rules can be applied.
For example, Kansas Rule 8.4(d) and (g) provide:
It is professional misconduct for a lawyer to: ...
(d) engage in conduct that is prejudicial to the administration of justice ... [and]
(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.[25]
The Model Rules Comment [3] to Rule 8.4(d) says the Rule:
... proscribes conduct that is prejudicial to the administration of justice. Such proscription includes the prohibition against discriminatory conduct committed by a lawyer while performing duties in connection with the practice of law. The proscription extends to any characteristic or status that...
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