PROMOTING CIVILITY BY ADDRESSING DISCRIMINATION AND HARASSMENT: THE CASE FOR RULE 8.4(g) IN SOUTH DAKOTA.

• Author: Hess, Wendy N.
• Position: ABA Model Rules of Professional Conduct

1. INTRODUCTION 235 II. WHY THE NATION & SOUTH DAKOTA NEED RULE 8.4(G): DISCRIMINATION & HARASSMENT BY ATTORNEYS STILL OCCURS IN A VARIETY OF MANNERS & SITUATIONS 237 A. ATTORNEYS BEHAVING BADLY: HARASSMENT & DISCRIMINATION BY Attorneys at Every Level of Attorney Interaction 237 1. Sexual Harassment & Gender Discrimination 238 a. Sexual Harassment & Gender Discrimination Examples 240 i. Attorneys' Sexually Harassing Conduct against Clients 241 ii. Attorneys' Sexually Harassing Conduct against Others 243 2. Other Types of Harassment & Discrimination by Attorneys 245 a. Other Types of Harassment & Discrimination Examples 247 3. Harassment & Discrimination in the Legal Profession Is Likely More Frequent & Pervasive Than Indicated By the Available Data & Cases 248 III. ATTORNEY ETHICS ANTI-BIAS RULE HISTORY: ABA & SOUTH DAKOTA 251 A. History of ABA's Anti-bias Provisions 251 B. History of South Dakota's Anti-bias Provisions 254 C. 8.4(g)'s Status in Other Jurisdictions 257 IV. AN ANTI-BIAS RULE COMPORTS WITH SOUTH DAKOTA'S COMMITMENT TO CIVILITY & PROFESSIONALISM 259 V. AN ANTI-BIAS RULE IS A NECESSARY ADDITION TO SOUTH DAKOTA'S ETHICAL RULES 262 A. Rule 8.4(g) Is Better Suited To Address Harassment and Discrimination Than Current Provisions 262 B. Rule 8.4(g) Would Create a Counterpart to South Dakota's Judicial Anti-Bias Rule 264 VI. SOUTH DAKOTA'S PROPOSED RULE 8.4(G) IS CONSTITUTIONAL 264 A. Some of Critics' Concerns about Model Rule 8.4(g) Are NOT Implicated by South Dakota 's Proposed Rule 8.4(g) 265 1. Unlike Model Rule 8.4(g), South Dakota's Proposed Rule Requires a Target of the Conduct 265 2. South Dakota 's Proposed Rule More Clearly Grants Attorneys Discretion to A ccept or Decline Client Representation 266 3. South Dakota's Proposed Rule Does Not Create a Special Exemption for Promoting Diversity 266 4. South Dakota's Proposed Rule Requires Actual Knowledge 267 B. Attorneys Are No Stranger to Broad-Reaching Misconduct Rules That Implicate Speech 267 1. Evaluating the Specificity of the South Dakota Proposed Rule's Terms 271 a. Harass & Discriminate 271 b. Legitimate Advocacy 277 C. Harassment and Discrimination Are Not Protected Speech 277 D. Scope of Rule & Concerns about Abuse of Discretion in Enforcing the Rule 273 1. Social Events and Other Activities Outside the Courtroom Are Part of Lawyering 274 2. The South Dakota Bar Does Not Discipline Lawyers Overzealously 275 3. A Cautionary Note about South Dakota's Proposed Rule's Scope 275 VII. CONCLUSION 278 VIII UPDATE 278 Appendix A: Comparison of South Dakota Rule 8.4(d) & Comment [3]; Model Rule 8.4(g); and Proposed South Dakota Rule 8.4(g) 280 Appendix B: Comparison of Proposed South Dakota Rule 8.4(g) & Eighth Circuit States' Anti-bias Provisions 287 I. INTRODUCTION

   In August 2016, the American Bar Association ("ABA") passed a resolution to add a new subsection to the attorney misconduct model rule of professional responsibility (Model Rule 8.4) to explicitly prohibit attorneys from engaging in discrimination and harassment based on various protected statuses, including race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. (2) According to the ABA, the subsection was necessary because "[discrimination and harassment by lawyers... undermines confidence in the legal profession and the legal system." (3) The South Dakota State Bar adopted a modified version of Rule 8.4(g) at its 2019 annual business meeting, subject to approval by the South Dakota Supreme Court. (4)

   Rule 8.4(g) serves both aspirational and concrete aims. It is aspirational because it demonstrates the legal profession's commitment to treating others--such as clients, litigants, opposing counsel, judges, law firm employees, and law students--with dignity and respect. It demonstrates to the public that the legal profession will not tolerate unfair and abusive treatment, particularly when that conduct targets a person's racial, religious, gender, or other status.

   The rule also serves a practical function to effectively address the problem of attorney harassment and discrimination when it occurs. Before Model Rule 8.4(g), the ABA's Rules of Professional Conduct did not have a rule that addressed this type of misconduct. The only applicable provision before 2016 was a comment to the general misconduct rule which prohibited attorney conduct that was prejudicial to the administration of justice--Model Rule 8.4(d). (5) South Dakota, a model rule state, also only has a comment. (6) Comments lack the authority of rules, (7) and are therefore less effective tools to respond to misconduct. The other attorney ethics rules also were not well-suited to address attorney harassment and discrimination. For example, Model Rule 1.1 (j), which forbids a lawyer from having sexual relations with a client, does not address a lawyer's sexual propositions or sexual remarks to a client. (8)

   On the surface, it might seem that a rule prohibiting attorney harassment and discrimination would be uncontroversial. Certainly, no attorneys are advocating in favor of harassment and discrimination. Yet, ABA Model Rule 8.4(g) has encountered some criticism, generally relating to concerns that it will impinge attorneys' free speech rights. (9) This article discusses the ways in which the South Dakota proposed rule 8.4(g) provisions side-step the most significant criticisms lodged against the ABA Model Rule 8.4(g).

   The conversation around Model Rule 8.4(g) highlights tensions between free speech and other competing principles such as civility, equality, and freedom from oppression and harassment. This article strives to address the issue from an apolitical perspective--civility in the legal profession. The South Dakota legal profession is deeply rooted in provisions requiring attorneys to be civil and courteous. Although this article addresses the South Dakota rule specifically, its examination of the rule through the lens of the legal profession's commitment to civility adds a new perspective to the discussion about adopting Model Rule 8.4(g). This article's emphasis on civility in no way means to describe harassment and discrimination as merely uncivil behavior. But harassment and discrimination certainly are at least uncivil. (10)

   The article addresses the need for Rule 8.4(g) in Part I, which examines relevant data and examples of harassment and discrimination by attorneys. Part II of the article provides a brief history of the ABA's adoption of Model Rule 8.4(g), the State Bar of South Dakota's adoption of proposed Rule 8.4(g), and the status of Rule 8.4(g) adoption in other states, especially South Dakota's sister states in the Eighth Circuit. The article makes the case for adopting 8.4(g) in South Dakota and addresses: the South Dakota legal profession's long-standing commitment to civility (Part III); the inadequacy of South Dakota's existing ethical provisions to deal with attorney harassment and discrimination (Part IV); and the constitutionality of the South Dakota proposed rule (Part V). The article ends with a summary of considerations for South Dakota as the South Dakota Supreme Court considers whether to adopt proposed Rule 8.4(g) (Parts V.D.3 and VI).

2. WHY THE NATION & SOUTH DAKOTA NEED RULE 8.4(G): DISCRIMINATION & HARASSMENT BY ATTORNEYS STILL OCCURS IN A VARIETY OF MANNERS & SITUATIONS

   Few attorneys would disagree, in principle, with the concept that harassing and discriminatory conduct do not have a place in the legal profession. (11) In that sense, Model Rule 8.4(g) is an aspirational rule, demonstrating the legal profession's commitment to equality and justice. But, the question remains about why South Dakota--or any other state--should adopt the rule. Does the legal profession actually have a problem with discrimination and harassment? The answer is "yes."

   To the extent that the question has been asked, surveys indicate that women and minority attorneys experience prejudice in the profession. (12) Published ethics opinions are also an indication of harassing and discriminatory lawyer conduct, although they represent only very few incidents due to the fact that many ethics charges and resolutions do not result in publicly available data or opinions. (13) The following data and examples are drawn from national, regional, and South Dakota-specific cases and surveys.

   1. ATTORNEYS BEHAVING BADLY: HARASSMENT & DISCRIMINATION BY ATTORNEYS AT EVERY LEVEL OF ATTORNEY INTERACTION

   Attorney harassment and discrimination occur at every level of attorney interaction--with clients, litigants, opposing counsel, judges, courthouse staff, law firm staff, colleagues, and law students. This section first addresses the most frequently reported and well-documented types of harassment and discrimination--against women, and then addresses other groups who have been subject to attorney harassment and discrimination. Some survey data is available and, in order to fill in gaps in information, this section also provides examples of attorney misconduct from published ethics cases. The section ends with a discussion of how frequent and pervasive harassment and discrimination are in the legal profession.

   1. Sexual Harassment & Gender Discrimination

      Available data confirm that there is a sexual harassment problem in the legal profession. Nationally, at least 25% of women in the legal workplace report unwanted sexual harassment, which includes "unwanted sexual comments, physical contact, and/or romantic advances." (14) A smaller number of men reported sexual harassment--7% of white men and 11% of men of color. (15) Nearly 10% of women reported that they lost career opportunities after they rejected sexual advances in the workplace. (16) More than 70% of all groups reported encountering sexist comments, stories, and jokes. (17)

      In 2018, the State Bar of South Dakota conducted a survey of its membership, and included questions...