To most lawyers, the Rules of Professional Conduct govern matters such as conflicts of interest and the disclosure of confidential and sensitive information, but do not impact how they manage their offices, how they conduct their private affairs, or how they deal with staff and others. This perception is not accurate because the rules have always applied to much more than just the items covered in a law school ethics course.

The rules apply, for example, to a lawyer's personal and professional conduct, which is how and why attorneys may be disciplined for criminal and other conduct unrelated to their practices. A recent proposal circulated by the Disciplinary Board on Aug. 31, in the Pennsylvania Bulletin, 49 Pa.B. 4941, confirms that the perception that the rules only apply to traditional lawyerly conduct is incorrect.

The proposal seeks to amend Pennsylvania Rule of Professional Conduct 8.4 to make it professional misconduct for a lawyer to "in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status." I believe that Pennsylvania should adopt the American Bar Association Model Rule 8.4, which applies not only to "the practice of law," but also to the "business of law" and to a lawyer's personal conduct.

Although this proposed amendment, which the Pennsylvania Supreme Court has not adopted, "does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16 and does not preclude advice or advocacy consistent with these rules," it will still be to many a radical change, albeit one that many ethicists and others believe is long overdue.

This proposed rule change is based upon, but differs from a proposal to amend Rule 8.4 of the American Bar Association Model Rules of Professional Conduct, which makes it 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." The amendment to the Model Rules and the proposed amendment to Pennsylvania's rules make it beyond a doubt that harassment and discrimination are prohibited conduct, and that no lawyer would be immune from discipline for engaging in such behavior.

Pennsylvania's proposal is limited, however, to conduct "in the practice of law," a limitation omitted from the Model Rules. In crafting the proposal, the board stated that it studied other jurisdictions' language relative to the scope of the prohibited conduct, noting that 34 jurisdictions require that the conduct have some connection to the practice of law, including "in the representation of a client," "in connection with the practice of law," "in a professional capacity," "in the practice of law," "in the course of representing a client" and "in connection with the lawyer's professional activities."

According to the Disciplinary Board, its proposed rule "encompasses activities that are required for a lawyer to practice law, as such activities have a sufficient and obvious nexus to the practice of law to fall within the application of the rule." According to the board, "in the practice of law" includes a lawyer's participation in activities such as Continuing Legal Education (CLE) seminars, and other activities that address that concept, such as bar association meetings and bar conferences where continuing legal education credit is offered. The Disciplinary Board also added the word "knowingly," thereby requiring actual knowledge, as is generally required under RPC 1.0(f).

The Disciplinary Board also considered Rule 2.3 of the Pennsylvania Code of Judicial Conduct governing bias, prejudice and harassment, but also requires "manifest bias or prejudice." Finally, the board also included references to conduct as "defined in applicable federal, state or local statutes or ordinances."

So, what does the proposed rule mean? Does it mean that a lawyer cannot sexually harass opposing counsel? Yes. Does it mean that a lawyer cannot show bias or discriminate against another lawyer based on sex, religion and other prohibited categories? Yes.

But does it mean that, because LGBTQ individuals are not protected under Pennsylvania law, and the U.S. Supreme Court has not yet ruled on whether such discrimination is barred under federal law, a lawyer may discriminate or harass another attorney because they fall under the LGBTQ umbrella? That answer is not clear.

Similarly, what does the proposed rule mean with regard to a lawyer's firm? Because the rule applies to "the practice of law," does it apply to hiring and firing of a firm's employees? After all, the board intentionally omitted phrases such as "in a professional capacity," which would clearly apply to the operation of a firm.

So where is the dividing line? The proposed Pennsylvania rule is unclear but would indicate on its face that lawyers are welcome to hire and fire persons who do not otherwise have protection under state or federal law. One recent column in this publication raises questions about what sexism in the practice of law is and whether that conduct is permitted.

The author of that column lamented the fact that some firms are reducing the number of legal secretaries, doing so in a way that seemed to focus on the relationship between male attorneys and female secretaries, as though female attorneys do not exist or that no males fill the role of legal secretary. In fact, the column seemed to harken back to the days when "girls were girls and men were men," and secretaries filled the idealistic roles stereotyped in movies and television.

The author noted that "a secretary will tell the lawyer that the letter is too nasty. A secretary will tell the lawyer they thought he was rude or abrupt with the client. A secretary is someone who will listen to the lawyer if the lawyer is having a hard time or personal issues. A secretary will look out for the lawyer and make sure all deadlines are being met. If the lawyer is having personal issues or a drinking problem, the secretary can call the lawyer on it and assist the lawyer in getting help. A secretary, in essence, humanizes the lawyer and protects the lawyer."

He added that "a good secretary can correct the lawyer and tell the lawyer sometimes the error of their ways. A good loyal secretary will let the lawyer know if there are problems in the firm or if people are not satisfied with the lawyer's work."

How does this attorney's idealized view of secretaries compare with the definition posited by one school that trains these male and female professionals? This entity defines legal secretaries and legal assistants as persons, qualified by education, training or work experience, employed or retained by a lawyer, law office, corporation, governmental agency or other entity, who perform specifically delegated substantive legal work for which a lawyer is responsible. Does this definition include personal counseling and addressing potentially protected information about health, etc.? Or does this definition fall within the author's belief that "Every lawyer needs someone working with them who he can trust, who is his quasi-friend, and who will look out for them" and that this should be part of the role of a legal secretary?

In that vein, Pennsylvania's proposed rule omits Comments 3 and 4 to the Model Rule. Comment 3 explains that "discrimination includes harmful verbal or physical conduct that manifests bias or prejudice toward others. Harassment includes sexual harassment and 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." This comment also notes that "The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g)."

Comment 4 to the Model Rule explains that "conduct related to the practice of law includes 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. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations."

The deliberate omission of these comments dilutes the proposed Pennsylvania amendment and seems to remove harassment and discrimination within the office setting from the types of conduct that could be subject to discipline.

It is unclear whether the Pennsylvania Supreme Court will adopt this proposed rule, adopt the ABA rule, adopt a different rule, or take no action. In its current form, however, Pennsylvania lawyers may feel insulated from discipline when, in fact, they should not engage in discriminatory or harassing conduct.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of "Fee Agreements in Pennsylvania" (6th Edition) and author of "Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms" (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at [email protected].