ABA Prohibits Bias in Law Practice
The legal profession has long had the ability to remove from its ranks lawyers whose conduct shows they lack ethical character sufficient to practice law. In August, the American Bar Association (ABA) further expanded the class of activities that can put a lawyer’s bar license at risk by amending ABA Model Rule 8.4, Misconduct, to prohibit discrimination in the practice of law.
Professional misconduct now includes “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.” ABA Model Rule 8.4(g).
Prohibiting discrimination is not a new concept in legal ethics. Prior to the amendment, Model Rule 8.4’s comments recognized that discriminatory acts could be professional misconduct. Comment 3 explained that if a lawyer engaged in bias while representing a client, the lawyer could be disciplined if the conduct was “prejudicial to the administration of justice.”
Despite the inclusion of antidiscrimination principles in the prior rule, the ABA’s August amendment is a notable substantive change for two main reasons. First, discriminatory conduct had never been a violation on its own. The substantive violation in Rule 8.4(d) was conduct “prejudicial to the administration of justice.” Explaining that violation within a comment did not make bias or prejudice actionable because comments are not ethical obligations. They are only provided to help guide lawyers in interpreting the rule.
Second, the scope of the new anti-bias provision is broader. The new rule purposefully includes an expansive restriction applying to all aspects of law practice. It is not limited, as the prior comment was, to actions that arise in the course of representing clients. Thus, while the prior comment explained how bias could be conduct prejudicial to the administration of justice, it required that the action take place while the lawyer was representing the client. The new prohibition applies to all aspects of a lawyer’s practice. For example, a lawyer may violate the rule by engaging in discriminatory hiring practices.
While some may be surprised that lawyers’ conduct outside client representation is regulated, the new Rule 8.4(g) is simply an extension of bedrock principles of the legal profession. Because of our special role and function within the justice system, lawyers’ ethical responsibilities extend beyond our obligations to clients and our work in representing clients. The privileges of practicing law and self-regulation include responsibilities to the justice system and respect for the rule of law. Moreover, among the ABA’s four goals is a goal to eliminate bias in all aspects of the legal system.
Though the ABA’s rule change is an important step, it is still up to each jurisdiction to decide whether it will adopt a similar rule prohibiting lawyers from engaging in discriminatory conduct. The ABA’s Model Rules are exactly that—models. While the ABA Model Rules are not actionable, the ABA’s strong reputation as a thought leader in legal ethics often shapes the mandatory rules imposed by those who do regulate lawyers. In future years, we can expect to see jurisdictions evaluate the new ABA Model Rule 8.4(g) and consider adding it to the ethical responsibilities of lawyers.
Nicole G. Iannarone is an assistant clinical professor and director of the Investor Advocacy Clinic. She teaches Professional Responsibility, Business Arbitration Practicum and Complex Litigation. Iannarone is a frequent speaker on issues of legal ethics and professional responsibility. She serves as the chair of the Atlanta Bar Association’s Reputation and Public Trust Committee and as vice-chair of the State Bar of Georgia’s Professionalism Committee and is a member of the State Bar of Georgia’s Formal Advisory Opinion Board.