In the days of yore, lawyers were generally viewed as a socially “conservative” group not likely to seek attention or say controversial or unkind things in public. Those days are, of course, long gone. Today many lawyers go out of their way to say things that are intended to draw attention and address controversial topics. Those who like to speak on such matters need to consider when the things they say might cross ethical lines, including their local versions of Model Rule 8.4(g), which is designed to create a better legal environment, one free of harassment and discriminatory behavior. The Rule has many variations in jurisdictions across the country and though it has faced constitutional challenges and widespread controversy, it isn’t going anywhere. Lawyers need to be cognizant of and avoid the types of speech and behavior that violate this rule lest they find themselves in.
ABA Model Rule 8.4 (g) says that it is misconduct for a lawyer to knowingly engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.
The ABA amended the Model Rules to include this anti-discrimination provision back in 2016. But many states, Ohio for example, already had a version of this rule on their books years before the ABA adopted the model rule while others have adopted more expansive versions since. Likewise, there are several states that don’t prohibit discrimination directly within their ethics rules but proscribe such conduct in their comments to their ethics rules.
Variations
Unlike many of the Model Rules, virtually every state that has adopted a version of Model Rule 8.4(g) has varied the wording from that appearing in the ABA version. There are thus dozens of variations across the country. A few key aspects to look at when evaluating the application of the rule are (1) the context in which the conduct occurs and (2) the substantive conduct at issue. For instance, in many states the prohibition only applies to conduct in a lawyer’s professional capacity—using terminology such as “conduct related to the practice of law” or “conduct in connection with the practice of law.” These definitions aren’t always fully explained, but one can envision arguments that such conduct transcends beyond that demonstrated in a courtroom and could be included to cover conduct at work or bar events too. The second aspect to evaluate is what the type of conduct and the subject matter covered by your state’s rule. For instance, your state may cover more than just comments of a sexual nature, but also those covering race, religion, national origin and more.
Model Rule 8.4(g) provides in part that “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.”
Ohio’s Rule 8.4(g) provides “It is professional misconduct for a lawyer to do any of the following: engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability”.
Iowa’s Rule 8.4(g) provides that “It is professional misconduct for a lawyer to engage in sexual harassment or other unlawful discrimination in the practice of law or knowingly permit staff or agents subject to the lawyer’s direction and control to do so.
New Mexico’s Rule 8.4(g) provides in part “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, or marital status in conduct related to the practice of law.
Examples
Formal Opinion 493 issued by the ABA Standing Committee on Ethics and Professional Responsibility provides several hypotheticals. This Opinion is a good read to determine what type of conduct is deemed “related to the practice of law” and what type of conduct is considered discriminatory or harassment. For instance, presenting at a CLE is “conduct related to the practice of law” as would be serving as an adjunct professor in a law school legal clinic. Yet, making comments about the type of colleges that individuals of a particular race should attend would somehow not be sufficient, without more, to violate the aspect of the rule pertaining to discrimination or harassment based on race. But the real-life examples will depend on the lawyer’s conduct and how it fits in with their particular state’s rule.
Earlier this year, an Iowa lawyer was found to have violated Rule 8.4(g) for amongst other remarks, making sexually derogatory comments about certain defendants their office was prosecuting and making a joke with a sexual innuendo about his wife in front of office employees.
But even if your state does not have an 8.4(g) type of rule on the books, your conduct could still be an ethics violation. Conduct that isn’t charged under Rule 8.4(g), can still easily fall into another category of Rule 8.4 Misconduct. Take for instance another disciplinary case recently issued out of New Mexico, where Rule 8.4(d) (“conduct that is prejudicial to the administration of justice”) was charged instead of Rule 8.4(g) despite the lawyer telling a prosecutor to “lay off the trendy feminist baloney.”
Takeaways
What you once may have classified as a funny joke, now may be deemed a Rule 8.4(g) violation in your state. These comments can be made at bar events, at work, in front of colleagues, to your clients, opposing counsel and more—so you always want to be careful what you are saying and to whom you are saying it. You may think you have a much friendlier relationship with someone that sees you as no more than a colleague and is offended by your comment or behavior. Times have and are continuing to change regarding what conduct is professionally, societally, and ethically acceptable. Looking at your state’s rules, opinions, and cases may save you not only from embarrassment, but from picking up a disciplinary case as well.