United States: Changing Professionalism: Will Harassment And Discrimination Survive?

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!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions