Changing Professionalism: Will Harassment and Discrimination Survive?September 9, 2016 – Articles The Legal Intelligencer
Abraham C. Reich authored The Legal Intelligencer article, "Changing Professionalism: Will Harassment and Discrimination Survive?"
Pennsylvania lawyers will be faced with an opportunity to address a recent amendment to the Model Rules of Professional Conduct dealing with harassment and discrimination. If the amendment—Model Rule 8.4(g)—is adopted in Pennsylvania, it would represent a significant addition. Anticipating that such a rule would not be adopted without significant debate, I write this article to give some historical perspective on changing professionalism and to offer some commentary on Model Rule 8.4(g).
In 1908, the House of Delegates of the American Bar Association adopted the first national standards of professional conduct for the legal profession; The Canons of Ethics. The canons focused on what were perceived to be the fundamental issues of professionalism of the time: the duty of lawyers to the courts, the obligations of candor and fairness and the concern about upholding the honor of the profession. Advertising, either direct or indirect, was considered "intolerable" and anything beyond handing out a tasteful business card was considered "per se improper." While there was reported debate on many of the canons, it was likely beyond the comprehension of those lawyers in 1908 to think that a code of conduct for lawyers would include issues such as legal advertising, sex with clients, sexual harassment and discrimination. But, times do change.
ADVERTISING–THE WINDS OF CHANGE
When the U.S. Supreme Court decided the landmark Bates decision in 1977, authorizing the advertising of "routine" legal services, there was an onslaught of criticism that the profession would "lose its soul." In fact, we were a profession—not a business—many thought, and to treat it like a business would be shameful. Yet, the business of law slowly developed as one of the underpinnings of our profession. As each Supreme Court decision on legal advertising unfolded, the organized bar found itself confronted with developing a whole new body of rules of professional conduct to address legal advertising.
Again, the lawyers in 1908 unlikely would have envisioned that legal advertising would become a billion-dollar industry and that every major law firm in the country would have marketing departments to address this aspect of the business. Moreover, every Supreme Court decision in the area of legal advertising from Bates (1986) through Florida Bar v. You Went For It, (1995) [nine cases] had both a majority opinion and a dissenting opinion. Uniformity was rare and debate on legal advertising raged. For better or worse, it is now the law of the land and many would argue that it has been both pro-competitive and pro-consumer, making legal services more readily available.
SEX WITH CLIENTS
More than 25 years ago, when some in our profession perceived a problem with lawyers having intimate relationships with their clients in the domestic relations area, a call to arms to the ABA House of Delegates was raised to prohibit such conduct. Behind the scenes there was consternation that the rules of professional conduct were becoming too personal and unrelated to the practice of law. However, in 2001 when a proposal was presented to amend Model Rule 1.8 to prohibit a lawyer from having "sexual relations" with a client, there was not one public speaker against it at the August 2001, House of Delegates meeting. Certainly, no one was prepared to stand up before the House of Delegates and argue that having sex with a client was a good thing. This amendment, as now contained in Rule 1.8(j), passed easily and has been part of the Rules of Professional Conduct without any great public outcry (adopted in Pennsylvania in 2006). Many would say it has served a valuable proscriptive purpose.
HARASSMENT AND DISCRIMINATION PROHIBITED
The question of making it unprofessional for lawyers to knowingly engage in conduct that was considered to be harassment or discrimination on the basis of one's sex, race, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status has been debated in many states for many years. So when the ABA House of Delegates proposed to amend Rule 8.4 prohibiting such conduct, one would have thought the debate would continue. It did—but behind the scenes.
A number of lawyers and groups lobbied members of the House of Delegates to oppose the proposed amendment on several grounds. Some felt it violated a lawyer's First Amendment rights. Others argued that it would chill advocacy on behalf of clients and might interfere with a lawyer's right to refuse to take a representation. In addition, some felt it could expose lawyers in managing a law practice, including a decision not to hire lawyers or nonlawyers if a candidate fell into one of the protective categories. Finally, others struggled with the meaning of some of the language.
Notwithstanding these concerns, Model Rule 8.4(g) passed on Aug. 8, as follows:
Rule 8.4: Misconduct: It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyers 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.
There was substantial lobbying to change prior iterations of this amendment. Changes were made and incorporated in the final version of Rule 8.4(g) and the comments. No one spoke against the amendment at the House meeting on Aug. 8. In fact, the amendment passed by an overwhelming voice vote, with a faint number of "no's."
THE COURSE FOR PENNSYLVANIA
It is now time for Pennsylvania to address these issues. But, it will not be the first time.
In 2007, the Interbranch Commission for Gender, Racial and Ethical Issues tackled the issue. It proposed to amend Rule 8.4 as follows:
Rule 8.4 Misconduct: It is professional misconduct for a lawyer to: (g) in the course of representing a client, knowingly manifest by words or conduct, discrimination or harassment, on the basis of race, color, sex, sexual orientation, national origin, age, disability or religion. A lawyer shall not retaliate against a person who complains about such discrimination or harassment complaint against the lawyer, or who cooperates with, or assists in, an investigation or such complaints. Paragraph (g) of this rule does not preclude a lawyer's consideration of or reference to the above-referenced classifications, when such consideration or reference is appropriate under the law and relevant to an issue in a legal proceeding or matter, or to the proper administration of justice. A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
The proposal by the Interbranch Commission was considered in 2007 by the Philadelphia Bar Association and the Pennsylvania Bar Association. Neither association moved the Pennsylvania Supreme Court to adopt this proposal or any proposal seeking to prohibit a lawyer's conduct involving harassment or discrimination. Why? Those who participated in the debates in 2007 (I was one of them) can offer their own explanations. In my view, it was not an easy topic to address, and it was not a widely comfortable issue to confront.
With the adoption in August 2016 of Model Rule 8.4(g), it is now time to address a similar rule. There are many reasons to support a change.
First, our profession should expressly condemn the conduct of any lawyer, or condemn any lawyer who knowingly engages in harassment or discrimination while practicing as a lawyer. Anything less would be unacceptable.
Second, the Model Rule 8.4(g) adopted by the ABA has addressed major concerns—it prohibits only knowing conduct and expressly allows a lawyer to refuse to represent a client without fear of reprisal.
Third, 25 states already have a rule of professional conduct in this area and 13 states have a comment supporting the concepts in Model Rule 8.4(g). Pennsylvania has neither.
Finally, the Rules of Professional Conduct are rules of guidance, professionalism and reason. We as professionals have lived with the "reasonable man (or woman)" standard for our entire professional lives. Acknowledging that our conduct will be judged against this standard should eliminate any real concern that a rule—if adopted—like Model Rule 8.4(g) would impede our ability to practice law. Any suggestion that it will encourage a floodgate of disciplinary complaints is not realistic.
Notwithstanding, the foregoing, we need to consider the following: First, we need to answer the following questions: Are we creating a solution for a problem that does not exist? Don't existing civil rights and employment laws adequately address any issues of harassment and discrimination?
Second, is the scope of the model rule too broad? What does "conduct related to the practice of law" cover? As expressly acknowledged in the commentary, it covers the lawyer's conduct while managing a law practice and while participating in bar association and community activities. It—arguably—covers a lawyer's conduct from the water fountain at the office to bar association political contests. Is this latitude really necessary or desirable?
Third, is it necessary to have a rule of professional conduct address the issue that could be subject to a disciplinary proceeding? Would a comment to Rule 8.4 be sufficient?
These important issues need a full airing. Let the debates begin!
Partners Michael Temin and Robert Tintner offered feedback for this article.
Reprinted with permission from the September 12 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.