July 11, 2017
The American Bar Association (ABA) has proposed a model rule to discipline lawyers who in the practice of law harass or discriminate, by speech or conduct, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. This proposed rule constitutes Rule 8.4(g) of the Model Rules of Professional Conduct (the Rule). Since each state drafts its own rules of professional conduct for lawyers, each state is free to adopt with or without amendments, or not to adopt any proposed rule.
This commentary urges state legislatures, state bars, and state supreme courts to seriously consider the adoption of the Rule and reject the misguiding assertions that the proposed rule violates the lawyers’ First Amendment rights of free speech, free exercise of religion, and freedom of association. The Nevada Supreme Court has scheduled a public hearing on July 17, 2017 to determine whether Nevada should adopt the Rule.
As a matter of policy, the Rule assures that the legal profession functions for all participants, including vulnerable groups, such as racial and sexual minorities and persons with disabilities. Inclusion and accountability, rather than exclusion and immunity, are the core values the Rule seeks to protect.
The Rule democratizes access to all persons involved in the legal profession to play their assigned roles without fear of harassment and discrimination. No lawyer –partner or associate, renowned or unknown — has any constitutional or statutory right in the practice of law to harass clients, witnesses, judges, court officials, support staff at the law firm, or colleagues on the basis of race, color, religion, national origin, gender, or any other unlawful classification. Nor does a lawyer have any constitutional or statutory right to engage in unlawful discrimination in the employment of new lawyers and staff.