The recent social and political upheaval in response to police-involved shootings of unarmed Black people has no doubt caused many of us – especially within the legal community – to think critically about racial justice and inequality within our lives, our communities, and our society.  Lawyers, as officers of the court, may feel a particular responsibility to think through these issues.  And indeed we should.  In addition to being advocates and counselors, the ethics rules note that a lawyer is also "a public citizen having special responsibility for the quality of justice."  See ABA Model Rules of Prof. Cond. Preamble at [1].

Recently, and in stated recognition of the importance of Rule 8.4(g) in the midst of the social awareness generated by the police-involved killing of George Floyd and other similar tragedies, the American Bar Association  Standing Committee on Ethics and Professional Responsibility (the “ABA Committee”) issued Formal Opinion 493, which interpreted the recently-adopted ABA Model Rule 8.4(g).  Model Rule 8.4(g) states:

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer 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.

As the ABA Committee noted, it issued the Opinion in order to explain the “[p]urpose, [s]cope, and [a]pplication” of the Rule.  

The Opinion set forth a number of key points:

  • Rule 8.4(g), like many other rules of professional conduct, serves to prevent harm to the legal system and the administration of justice.  The conduct addressed by Rule 8.4(g), namely discrimination and harassment, “harms the legal system and the administration of justice.”  Thus, the conduct prohibited under the Rule is of a similar nature to that addressed in other rules, like those that would subject a lawyer to discipline if her discriminatory or harassing behavior took place, say, in the representation of a client.  (See Model Rules 3.5(d), which prohibits “conduct intended to disrupt a tribunal,” and 4.4(a), which prohibits using “means that have no substantial purpose other than to embarrass, delay, or burden a third person.”)  
  • Rule 8.4(g) goes beyond conduct covered by other law, but does not reach conduct unconnected to the practice of law.  Rule 8.4(g) prohibits conduct not covered by other law, such as federal proscriptions on discrimination and harassment in the workplace.  So, although conduct that would violate Title VII of the Civil Rights Act of 1964 would also violate Rule 8.4(g), the reverse may not be true, and behavior not meeting Title VII’s threshold could still be a violation of the Rule.  As the Opinion reasoned, "[f]or example, a single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of law would likely not be severe or pervasive enough to violate Title VII, but would violate Rule 8.4(g)."  But whatever the conduct, it must always be connected to the practice of law to come within the scope of the Rule.  This means that the conduct can take place in connection with “representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business, or social activities in connection with the practice of law.”  Model Rule 8.4 cmt. [3].  
  • A standard of objective reasonableness applies in evaluating violations of the Rule.  To violate Rule 8.4(g), a lawyer need only know or reasonably should know that her conduct constitutes discrimination or harassment.  This will typically mean that the violation of the Rule was intentional.  But in any case, and regardless of intentionality, the conduct must be found harmful to be grounds for discipline.  In addition, as noted above, violations are not restricted to conduct that is severe or pervasive (which is the standard typically applied to discrimination claims).
  • The Rule only covers conduct for which there is no reasonable justification.  There are a number of specific circumstances that do not violate Rule 8.4(g), as set forth under Comment [5] thereto.  These exceptions include limiting one’s practice to providing representation to underserved populations (provided one is doing so consistent with the rules of professional conduct and other law), providing legitimate advice or advocacy consistent with the rules of professional conduct, representing clients whose conduct might be perceived as harassing or discriminatory, and freely expressing one’s own views on matters of public concern in a context unrelated to the practice of law. 
  • “Discrimination” under the Rule includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”  Rule 8.4(g), cmt. [3].  For example, use of a racist or sexist epithet with the intent to disparage an individual or group of individuals demonstrates such bias or prejudice, and can rise to the level of discrimination under the Rule. 
  • “Harassment” under the Rule means ”conduct that is aggressively invasive, pressuring, or intimidating.”  The aforementioned definition is consistent with the use of “harassment” in other rules, such as Model Rule 3.5(c)(3)’s prohibition on communicating with jurors or prospective jurors if the communication “involves . . . harassment,” and Model Rule 7.3(c)(2)’s prohibition on solicitation that “involves . . . harassment.”  Importantly, the meaning of “harassment” under Rule 8.4(g)  includes sexual harassment, the prevention of which is a “particular objective of Rule 8.4(g),” according to the Opinion. 
  • Rule 8.4(g) (probably) does not violate the First Amendment.  A number of courts analyzing rules similar to 8.4(g) have concluded that those rules easily withstand First Amendment challenge.  Without drawing any definitive legal conclusions (which is outside the ABA Committee's jurisdiction), the Opinion reasoned that Rule 8.4(g) is similarly likely to withstand a First Amendment challenge, owing to the importance of regulating lawyers as a means of maintaining public confidence and credibility of the judiciary – which is a condition of being licensed to practice law.  The Opinion also reasoned that the Rule promotes a well-established state interest by prohibiting conduct that reflects adversely on the profession and diminishes the public’s confidence in the legal system and its trust in lawyers. 

It is important to note the ABA Model Rules are not binding and not all jurisdictions have adopted Model Rule 8.4(g).  Although the New York Rules of Professional Conduct contain an anti-discrimination rule (which was in existence since before the ABA adopted Model Rule 8.4(g)), New York's version of Rule 8.4(g) is much narrower and, unlike the ABA rule, is limited to "unlawful discrimination."  

The ABA Opinion will hopefully serve to elucidate the meaning of Rule 8.4(g), and better clarify the standards lawyers should uphold as we practice our trade.  Certainly, the Opinion suggests Rule 8.4(g) will play an important role in addressing racism, discrimination, and harassment in our profession.  As the Committee commented: “Enforcement of Rule 8.4(g) is . . . critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”