ABA Gives New Guidance on Discrimination and Harassment Prohibition
Guidance is comprehensive, but not binding on states

by Julia Cardi

Four years after adoption, the American Bar Association released an opinion July 15 giving guidance on its model professional conduct rule prohibiting discrimination and harassment by attorneys.

Adopted in 2016, Model Rule 8.4(g) outlines professional misconduct based on behavior “related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination” based on characteristics such as race, sex, religion and sexual orientation.

The ABA’s new guidance explains the model rule is intended to be more expansive than covering only behavior “prejudicial to the administration of justice” and contexts directly related to client representation.

“Such breadth was necessitated by evidence that sexual harassment, in particular, occurs outside of court related and representational situations—for example, in non-litigation matters or at law firm social events or bar association functions,” says the opinion.

The breadth of Model Rule 8.4(g) also has the potential to cover behavior that doesn’t necessarily violate a law, such as an isolated sexual comment that may not be severe or pervasive enough to violate Title VII, according to the ABA’s guidance. Although the rule doesn’t regulate conduct unconnected to lawyers’ professional life, it has the intent of expecting a higher standard of conduct from lawyers than then the general public.

“Harassment and discrimination damage the public’s confidence in the legal system and its trust in the profession,” says the opinion.

But few states have adopted Model Rule 8.4(g) since its release in 2016. It has sparked controversy in particular over worries that it could chill First Amendment religious and free speech rights.

But the model rule carves out “legitimate advocacy” as an exception. The guidance gives as a hypothetical example an attorney who belongs to a religious professional association that advocates for the discretion of private employers to fire or refuse to hire people based on sexual orientation or gender identity. The lawyer’s membership in the organization would not violate Model Rule 8.4(g), according to the guidance.

“Even though the Supreme Court has now recognized that discrimination based on sexual orientation and gender identity violates Title VII,  it is not a violation of Rule 8.4(g) to express the view that the decision is wrong,” says the ABA’s opinion.

In 2019, Colorado adopted Rule 8.4(i) to prohibit sexual harassment related to lawyers’ “professional activities.” When the rule was under consideration, Attorney Regulation Counsel Jessica Yates told Law Week the narrow scope was a deliberate decision intended to head off First Amendment objections and make it clear the rule is about conduct, not attorneys’ personal views.

Before 8.4(i)’s adoption, Colorado already had Rule 8.4(g ) in place that prohibits bias in the course of client representation against a person based on race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status.

The ABA’s new guidance is not binding on Colorado’s rules. The Office of Attorney Regulation Counsel is only bound by Colorado’s professional conduct rules and opinions of the state Supreme Court. But according to Jack Tanner, chair of the Colorado Bar Association’s Ethics Committee that releases opinions interpreting already adopted rules, guidance from the ABA on its model rules can still be relevant. He added that although the wording of Colorado’s Rule 8.4(i) is different than Model Rule 8.4(g), the “spirit” is the same, though in the interview with Law Week he said he was not speaking on behalf of the Ethics Committee.

Anything outside of Colorado’s professional conduct rules and the Supreme Court’s opinions just has the potential to be persuasive, Tanner said. “Included in that is ABA opinions, CBA opinions, and then a third area could be opinions from other states.”

However, Tanner declined to comment on whether the Ethics Committee is likely to discuss the ABA’s new opinion, citing confidentiality.

But he said controversy among states about a model rule can be relevant when the Ethics Committee considers whether the disagreement makes it difficult for the committee to give clear guidance of its own on Colorado’s rules . He said the committee doesn’t necessarily shy away from a topic just because it has engendered different opinions in other states. For example, Colorado’s professional conduct rules make it misconduct if an attorney commits a crime that reflects on their fitness to practice law. And the Ethics Committee has taken the position that an attorney using marijuana in their off time isn’t an ethical violation, even though it is still illegal federally.

Tanner said the committee is more likely to stay away from weighing in on something controversial if the committee can’t come to an opinion that is clear.

“If there’s an issue out there that 20 states have looked at, and 10 have said one thing and 10 have said the opposite thing, and there’s no authority in Colorado, that’s something the bar association might not weigh in on,” Tanner said. “We would hate to come out with an opinion that says the answer here is ‘A’ when it turns out the answer is ‘B’ because there’s no authority and all the states are split.”

This article appears in the July 27 issue of Law Week Colorado. To read other complete articles from that issue, order a copy online