The ABA Annual meeting is currently underway in San Francisco, California. One of the items on this year's agenda for consideration by the House of Delegates is a resolution to amend to the ABA Model Rules of Professional Conduct, Rule 8.4, Misconduct. The resolution was the work of several entities within the ABA, including the Standing Committee on Ethics and Professional Responsibility, the Diversity and Inclusion 360 Commission and the Commission on Women in the Profession, among others.
The proposed amendment would add subsection (g) to the Rule, making it 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.
The New York Times carried a story on the proposal yesterday, including comments from those on both sides of the issue, including those who argue that the Rule violates free speech.
Another article this week, at American Thinker, calls the new rule an attempt by the ABA to impose political correctness on all lawyers, although one of the objections in the article - that the rule would prohibit lawyers from choosing whom to represent - seems unfounded given the proposed wording of the most recent revision of the proposed rule, which can be found here.
Another concern might be that lawyers will be forced to take on clients that they cannot afford to represent so as not to be seen to violate the prohibition against discrimination based on socioeconomic status. This concern also seems to be covered by the statement that the ability of a lawyer to accept, decline or withdraw from representation in accordance with Rule 1.16. In addition, proposed Comment , which states in part, "A lawyer may charge and collect reasonable fees and expenses for a representation."
In New York (as in several other states), Rule 8.4 already contains a subsection (g) as follows:
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding;
Read the proposed ABA model rule and new comments for yourself and let me know what you think in the comments. Should the bar prohibit lawyers from these kinds of comments and activities, or do they go too far and impose on lawyers' rights of free speech and association?