Ethics Opinion Clarifies Scope of Antidiscrimination Rule

• Author: Michael Stefanilo Jr.
• Pages: 7-7

Published in Litigation News Volume 47, Number 1, Fall 2021. © 2021 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any f orm or

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awyers now have more cla rity on

the dos and don’ ts under Model

Rule of Professional Conduct

8.4(g), which p rohibits harass-

ment or discrimination in

the legal settin g. In Formal Opinion

493, the ABA Stan ding Committee on

Ethics and Professional Responsibility

emphasized that wh ile the rule cov-

ers conduct o utside the practice of

law, it does not limit an at torney’s free

speech right s. ABA Litigation Section

leaders bel ieve that the opinion will

promote more widespread adoption

of the rule by easing co ncerns over

speech restrictions.

Rule 8.4(g) p rovides that “[i]t is

professional misconduct for a lawyer

to . . . engage in cond uct that the law-

yer knows or reasona bly should know

is harassment o r discrimination on the

basis of race, sex, re ligion, national

origin, ethnicity, disability, age, sexual

orientation, gender identity, mari-

tal status or socioeconomic status

in conduct rel ated to the practice of

law.” However, the rule also states

that it does not limi t an attorney’s

ability to accept, d ecline, or withdraw

from represent ation. Nor does it pre-

clude “legitimate advice or advocacy.”

The committee exp lained in Formal

Opinion 493 that wh ile the rule “does

not regulate conduct unconnected

with the practice of law,” “it d oes

impose a highe r standard on lawyers

than expected of th e general public.”

According to the commit tee, this is

intended to promote co nf‌idence in the

legal system and t he legal profession.

Because prohibited conduct “occurs

outside of cour t-related and repre -

sentational situ ations,” the rule also

applies to condu ct “in practice-related

settings beyond th e courtroom and in

contexts that may not be c onnected

to a specif‌ic client re presentation.”

Activities subjec t to the rule include

“participat[ ion] in bar associatio n,

business, o r social activities in connec-

tion with the practi ce of law.”

Ethics Opinion Clarif‌ies Scope of

Antidiscrimination Rule

Opinion 493 also m akes clear that

Rule 8.4(g) “p rohibits conduct that is

not covered by other law, such as f ed-

eral proscriptions on discrimination

and harassme nt in the workplace.”

The committee exp lained that while

violations of fed eral employment law

would also implic ate the rule, the con-

verse may not be true.

The committee gave th e follow-

ing example: “[A] single insta nce of

a lawyer making a d erogatory sexual

comment directed towards another

individual in co nnection with the

practice of law would l ikely not be

severe or pervasive e nough to vio-

late Title VII [of the Civil Right s Act],

but would violate Rul e 8.4(g).” Thus,

an isolated act of h arassment or

discrimination does not insulate an

attorney from the rea ch of the rule,

though it may be releva nt to the

severity of the violati on or be con-

sidered as a mitiga ting factor in a

disciplinary proceeding.

To address constitutional con-

cerns, the comm ittee stated, “The

Rule does not preven t a lawyer

from freely expre ssing opinions a nd

ideas on matter s of public concern,

nor does it limit a law yer’s speech

or conduct in se ttings unrelate d to

the practice of law.” It expla ined

that two constitutional principles

constrained it s application: (1) “an

ethical duty th at can result in dis-

cipline must be s uciently clear to

give notice of the condu ct that is

required or forb idden”; and (2) “the

rule must not be over broad such

that it sweeps within it s prohibition

conduct that th e law protects.”

In support of it s position, the com-

mittee enumerated other broadly

worded ethics rul es that had with-

stood First Ame ndment lawsuits. It

also listed several “representative”

hypotheticals to illu strate the types

of conduct that a re permissible or

impermissible under the rule.

At least one cour t has blocked

By Michael Stefanilo J r., Litigation News Contributing Editor

application of th e rule. In Greenberg

v. Haggerty, the U.S. District

Court for the E astern District of

Pennsylvania granted a preliminary

injunction to preve nt Pennsylvania

Rule of Professional Conduct 8.4(g)

from taking ee ct. The court con-

cluded that Rul e 8.4(g) constituted

“unconstitutional viewpoint dis-

crimination in vio lation of the First

Amendment” because it censored

only “oensive” wor ds and “was

without any concrete standards” as

to “who or what oen ds.”

Litigation Section leaders agree

that the rule is cons titutional as

applied. “Formal Opinion 493

addresses the i ntent and eect of the

rule and helps exp lain how its broader

language can be accomplished in

a real setting,” op ines Laura K. Lin,

San Francisco, C A, cochair of the

Section’s Ethics & P rofessionalism

Committee. “The opinion assists

those states that mig ht be hesitant

to adopt it by providing comf ort sur-

rounding what th e rule actually looks

like when applie d,” she adds.

“As lawyers, we hold a pri vileged

license to practic e our profession,”

oers Jimmy K. Goodman, Oklahoma

City, OK, cocha ir of the Section’s Civil

Rights Litigation Committee. “We

should all sta nd ready to be called

to account when we fail o ur oath

or in our duties .As a strong First

Amendment advocate, I f‌ind it

a reasonable re gulation for those

who take the lawyer ’s oath,” con-

cludes Goodman.

Digital versio ns of all Ethics stories,

including link s to resources and

authorities, a re available at http://bit.ly/

LN-ethics .

By Michael Stefanilo J r., Litigation News Contributing Editor

AMERICA N BAR ASSOCIATION FALL 2021 • VOL. 47 N O. 1 | 7

ETHICS STR UGGLES IN THE LEGAL WOR LD