At its August 2016 annual meeting, the American Bar Association passed a resolution that amended 8.4 of the Model Rules of Professional Conduct to make it an ethical violation for an attorney 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.” The amendment does not limit the ability of an attorney to accept, decline or withdraw from representation in accordance with Rule 1.16 or preclude an attorney from rendering legitimate advice or advocacy consistent with the rules.
In the Comments to Rule 8.4, “conduct related to the practice of law” is broadly defined to include not just representing clients and advocating on their behalf in the practice of law, but also covers activities in the scope of 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. As such, an attorney could be subject to disciplinary action if an employee in his law firm complained of discrimination or harassment and also for his or her behavior during professional networking activities. Additional Comments define discrimination and harassment as including harmful verbal or physical conduct that manifests bias or prejudice toward others, as well as derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. Comment 5 discusses behavior that is exempt from the Rule, allowing the attorney to limit the scope and subject matter of his representation without running afoul of the Rule and also allowing attorneys to charge and collect reasonable fees and expenses for representation. Peremptory challenges exercised on a discriminatory basis do not alone establish a violation of the rule. Likewise, an attorney’s representation of a client does not constitute an endorsement by the attorney of the client’s views or activities.
