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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.