As I have for over a decade now, I attended the American Bar Association’s Annual Meeting last week serving on the ABA’s House of Delegates – the organization’s main governing body. My exact position is actually State Delegate — a position that nominally makes the lead delegate of Connecticut’s delegation, though in practice it’s much more democratic than that.
Among the items up for deliberation was a change to the model rules of professional conduct — the set of guidelines advanced by the ABA that are used as guides to set ethics rules in various states.
We considered a change to Model Rule 8.4 that would make it an ethical violation for a lawyer to discriminate or harass on the basis of various protected categories. You can watch the debate here.
The actual proposed rule went through several iterations as it was debated before the meeting. The rule that was voted on changed the language to better match other rules by making it a violation to engage in conduct that the lawyer “knows or reasonably should know” is harassment or discrimination.
One of the issues, for example, that was discussed was whether the addition of a protected category of “socioeconomic status”. In fact, during one of our caucuses, I asked one of the sponsors about the inclusion of this language. While he said that there was some mild disagreement about its inclusion, he noted that various states had already included it and pointed to an Indiana ethics matter from 2009 where it was used the basis for a grievance. He said to remove it now could send the wrong message.
Ultimately, the matter was approved nearly unanimously on a voice vote as any opposition to it melted away.
The model rule has a number of comments attached to it, the most interesting of which is that “The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of [the new model rule].” On its face, that seems to suggest that caselaw in employment discrimination cases can help provide guidance — though there still remain open questions about how that might apply in a non-employment context.
But from my perspective, the rule is a step in the right direction. Lawyers behaving badly — such as to opposing counsel — have no place in our profession and this new rule can hopefully make it clear that such behavior will not be tolerated.