Professional Conduct Rule 8.4(g) muzzles the bar and makes attorneys too afraid to speak out.

I saw the Pennsylvania Supreme Court adopted a new rule, Professional Conduct Rule 8.4(g). This prohibits discriminatory conduct. If I recall, in an earlier article, I thought you opposed that rule?

Samuel C. Stretton.

That is correct. When the rule was pending, my article was written suggesting some significant changes to the rule as written. One of the major criticisms this writer had of Rule 8.4(g) is that it goes far beyond the regulation of the legal profession, and instead starts to regulate one's thought process. Also, one of the major criticisms was the legal profession is slowly, but surely becoming overregulated.

Rule 8.4(g), in essence, makes it professional misconduct for a lawyer in the course of representing a client to knowingly manifest by words or conduct, discrimination and harassment on the basis of race, color, sex, sexual orientation, national origin, age, disability or religion. Further, a lawyer can't retaliate against the person who complains about such discrimination or harassment by the lawyer. The new rule also indicates that using preemptory challenges to jurors, which the judge finds to be discriminatory, does not alone result in a violation of this rule. But obviously the inference is it could.

The rule is of major concern, at least, to this writer, but it is now one of the Rules of Professional Conduct, which everyone should be aware of and comply with.

Of concern are the words "knowingly manifest by words or conflict." What does that mean? If after a hearing a lawyer comes back to their office complaining about a female judge to another lawyer in the office, or a paralegal, where the lawyer uses a derogatory term in the heat of frustration, does that mean if the person reports the lawyer, they are going to be disciplined? If an opponent who, of the opposite sex, or different ethnic background, files a complaint with the Disciplinary Board because they felt intimidated in some fashion during a hard-fought case, is that going to result in professional discipline?

There are also new comments to the Rule 8.4(g). Comments 5 through 8 still raise concerns about how far this rule reaches, and whether a lawyer is going to be disciplined for their thought process, whether opposing counsel is now going to use this rule as a new bag of tricks in terms of making complaints for the purpose of tactical advantage, and why there was a need for this rule when there are ample federal and state causes of action if someone acts in a discriminatory or harassing fashion.

The danger of this rule becomes obvious by looking at events in the past few months. Anyone who criticizes, or has a different view of discrimination, based on race seems to be punished. For instance, a newspaper editor had a headline in reference to the riots about property damage. He had to resign. Some sports figures, although accepting full-well that there is bias and prejudice, thought it was wrong to kneel because it was disrespectful to the flag, and they were savaged in the press.

One would hope it would be OK to have different ideas or to express nuances in ideas, but that appears to no longer be the case. We are now back to the days of Sen. Joe McCarthy. In the 1950s, he was on an anti-communist kick and anyone who was associated with or expressed some support for the Communist Party, even though it may have bene 20 or 30 years before, was blacklisted, demeaned, charged criminally at times, prevented from getting professional licenses, etc. That now seems to be what is happening in this modern world. If when you were young, or years ago, made an off-color comment, or were aggressive on a date when you were perhaps in high school, Heaven help you if you are running for a political office or being appointed to a government position.

This "modern McCarthyism" will now destroy you and disgrace you. Now, the Rules of Professional Conduct provide a very convenient vehicle to punish a lawyer because the lawyer is perceived to be acting discriminatory in some fashion. A lawyer friend of this writer was ridiculed when she raised some questions about the impact of this rule. People suggested she was someone with ingrained racism or things of that nature. The world is slowly turning insane, particularly when educated people start acting and thinking that way.

There was an article recently in the Spectator by Claire Fox, titled, "How a Serious Issue With Racism Was Reduced to a Tick-Boxing Exercise." The subtitle was, "It Is Up to the Public to Avoid Being Dragged Into Over Simplistic Whose Side Are You on Row." The article is a good one to read. It points out how worrisome the modern times have become if one disagrees with progressive groups on their views of racism or sexism.

What the Rules of Professional Conduct should do is create aspirations and guidance as to how to be a good attorney. A good attorney is someone who is knowledgeable, experienced, diligent, who fights for their client within the limits of the law of ethics, who communicates with their client and does so in a reasonable fashion. That is what one wants. A lawyer should be fearless and willing to stand out and speak out on behalf of their clients and their causes.

Rule 8.4(g) severely limits that and places lawyers at risk. Taking a controversial position could result in serious issues, complaints and allegations filed against an attorney. Rules like 8.4(g) muzzle the bar or make people too afraid to speak out. The Rules of Professional Conduct should govern the conduct of a lawyer in the practice of law in representing clients. It should not be a form of thought-control or a basis to punish someone because they don't think the same way as someone else on issues of race, religion, ethnic background, etc. It is a very dangerous area to get into and now the Supreme Court has crossed the threshold. It will be interesting if anyone now asks for my resignation as a columnist after 25-plus years based on this column. If they do, what I suggested has come to pass.

A lawyer should carefully document the decision-making process in a Rule 1.18 decision.

I met with a client on a divorce case and later she chose not to hire me. I had a brief conversation with her. Her spouse has now come to me and I want to represent him, but the other side is raising Rule 1.9, conflict of interest. Are they right?

First, although Rule 1.7, the general conflict of interest rule, and Rule 1.9, duties to former clients in terms of conflicts have to be consulted, in this case, a different rule would apply. The rule that would apply would be Rule 1.18, duties to prospective clients. This rule was adopted approximately 15 years ago at the request of the Family Law sections of The Pennsylvania Bar Association because of prospective clients consulting every divorce lawyer in town before hiring someone to conflict everyone else out. As a result, Rule 1.18 lessens a little bit the conflict rules that are set forth in Rule 1.7 and Rule 1.9, when a prospective client meets with a lawyer, but does not hire them.

Rule 1.18 still has teeth even if there is no attorney/client relationship. If confidential information was given, a lawyer cannot use or reveal such information, which "may be significantly harmful to that person." There are exceptions under Rule 1.18(d), such as when both the affected client and the prospective client gave informed consent, a screen was put in place.

Obviously, if one is deciding whether to take the case and spends a five-hour interview going through everything, including details of the prospective client's financial or emotional issues, there is a good chance the lawyer is never going to represent the opposing spouse. But if there was only a short meeting, and the lawyer gets only the basic information and is waiting for the client to make a decision, the lawyer could most likely represent the opposing side if they call at a later time.

There has been a new opinion by the American Bar Association's Committee on Legal Ethics, that is dated June 9 and titled, Formal Opinion 492.

The opinion discusses what is significantly harmful information. The opinion notes a lawyer can be screened and other members in the firm could then take on the case. The opinion notes what is significantly harmful is a fact-based analysis. This opinion, which is based on the model Rules of Professional Conduct, ought to be, at least, reviewed.

The opinion points out that just because someone calls or talks to a lawyer doesn't make them a prospective client within the meaning of Rule 1.18. The opinion specifically notes if someone, after viewing the lawyer's website or the lawyer's advertising, communicates with a lawyer, that by itself does not necessarily make them a prospective client.

Comment 2 to Rule 1.18 noted by the committee is of value. Comment 2 states that if a person consults with a lawyer without any reasonable expectation to establish an attorney/client relationship, then that person is not a prospective client. Further, Comment 2 also notes that if a person consults with a lawyer with the sole intent to disqualify the lawyer from representing the other side, that client would not be considered a prospective client. See Comment 2 to Rule 1.18.

One thing lawyers have to be aware of is that the significantly harmful test does not require the client to show harm is actually going to occur. The standard is maybe significantly harmful or could be significantly harmful, as set forth in Rule 1.18.

The American Bar Associations Ethics Committee suggests significantly harmful would have to be censored to privileged information that the lawyer would not have received in the ordinary course of due diligence on the representation of the other side.

Also, the committee points out that if the information received has long-term significance or relevance, such as litigation motive, or litigation strategy, that would be considered significantly harmful.

The committee strongly recommends during initial consultation to limit significant harmful information until the client has made a firm choice of whether they are going to hire the lawyer or not.

Meeting with a client who does not hire the lawyer and then later being called to represent the opposing party is always a difficult situation. A careful analysis of Rule 1.18 and the aforementioned Opinion 492 clearly suggests that it is not an automatic disqualification, and the concept of significantly harmful information should be carefully evaluated as also should the issue of whether or not the client is truly a prospective client. The lawyer should carefully document this decision-making process in the Rule 1.18 decision.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.