In formal opinion 493, the ABA offers guidance on Model Rule 8.4(g)’s purpose, scope, and application. Guidance
Controversial Rule 8.4(g) has been adopted or reflected in only a few states’ own rules. The Rule states that it is professional 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
Rule 8.4(g)’s purpose, as stated in the opinion, is “maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.” When lawyers engage in discriminatory and harassing conduct in connection with the practice of law, their actions produce “skepticism and distrust” in a profession that should be ensuring “justice and fairness.”
In terms of Rule 8.4(g)’s scope, the opinion highlights that the Rule “prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassing or discriminatory.” The standard of objective reasonableness determines whether the conduct violates the Rule. If the conduct is determined to be harmful, then there will be grounds for discipline. Moreover, conduct can violate the Rule even if it is not “severe or pervasive,” which is the employment discrimination standard. However, if the harmful conduct is an isolated incident, then this fact can serve as a mitigating factor in a disciplinary proceeding.
The opinion further explains that “the Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.”
Regarding Rule 8.4(g)’s application, the opinion provides hypotheticals to illustrate whether or not a lawyer’s conduct constitutes a violation of the Rule.
The following examples would not violate 8.4(g):
- A lawyer accepting representation of a religious organization that challenges, on First Amendment grounds, an ordinance requiring all schools to provide gender-neutral facilities.
- A lawyer speaking at a CLE program, who expresses a controversial point of view.
- A lawyer’s membership in a religious legal organization that advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.
The following examples would violate 8.4(g):
- A lawyer serving as an adjunct professor supervising a law student in a law school clinic who makes repeated comments about the student’s appearance and also makes unwelcome, nonconsensual physical contact of a sexual nature with the student.
- A lawyer making discriminatory remarks about Muslims during a planning session for an orientation program for newly-hired associates.
For detailed explanations of the examples provided by the ABA, read the full opinion here.
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