Ethical Prohibitions Against Discrimination Promote Diversity in Our Profession

The Bencher—March/April 2017

By McKean J. Evans, Esquire

This issue of The Bencher asks what steps lawyers can take to promote diversity in our profession. The American Bar Association’s recently passed model rule prohibiting discrimination is one answer to that question.

Discrimination in the legal profession is an unfortunate reality. One judge described the problem as a “‘dirty little secret,’ which, while undoubtedly occurring on a daily basis, no one speaks about in public.” Principe v. Assay Partners, 586 N.Y.S.2d 182, 185 (N.Y. Sup. Ct. 1992). Anecdotal evidence of discrimination is disturbingly easy to come by if you ask any attorney. The problem has also been formally catalogued by countless studies, such as the Florida bar’s 2015 report noting women lawyers often report discrimination from opposing counsel, judges, and their employers. See The Florida Bar, Results of the 2015 YLD Survey on Women in the Legal Profession, December 2015. While we have undoubtedly progressed since the U.S. Supreme Court’s infamous holding that women were unfit to practice law because God intended they be wives and mothers in Bradwell v. People of State of Illinois, 83 U.S. 130, 141-42 (1872), discriminatory and demeaning conduct endures despite the advent of constitutional and statutory protections. This conduct adversely affects attorneys’ professional lives, prospects, and compensation. 

ABA Model Rule 8.4(g) is designed to specifically address this problem by prohibiting “conduct 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 creates a clear standard under which discriminatory and harassing conduct has no place in the legal profession.

Unfortunately, Rule 8.4(g) has prompted a wave of misplaced criticism. Critics in The Bencher and elsewhere have decried the rule as “fascist,” a “speech code[ ],” and have theatrically called for “resistance” against the “thought police.” See David French, “A Speech Code for Lawyers,” National Review, Aug. 11, 2016; Ron Rotunda, “The ABA Overrules the First Amendment,” The Wall Street Journal, Aug. 16, 2016; Francis G.X. Pileggi, “ABA Seeks to Enforce Political Correctness,” The Bencher, November/December 2016.

This hyperbole is unfounded. From these critics’ tone, you might think ethical prohibitions against attorney discrimination are a radical innovation. Not so. Twenty-five jurisdictions already include anti-discrimination provisions in their ethical rules. The District of Columbia has had a form of the rule on its books since 1991.

Even outside formal ethical rules, attorney discipline for discriminatory conduct is nothing new. When it happens on the record, judges can and do sanction attorneys for such conduct. As far back as 1992, one judge sanctioned an attorney for telling opposing counsel, “I don’t have to talk to you, little lady” and “Be quiet, little girl” during a deposition. Principe, 586 N.Y.S.2d at 184. More recently, a federal judge sanctioned one attorney for telling opposing counsel not to raise her voice in a deposition because “It’s not becoming of a woman…” Claypole v. Cty. of Monterey, 2016 WL 145557, at *4 (N.D. Cal. Jan. 12, 2016). This year, a Florida judge faced discipline for remarking that African-Americans “could…go back to Africa.” Cleve R. Wootson, Jr., “Take a Ship ‘Back to Africa’: Florida Judge Reassigned After Alleged Comments About Black People,” The Washington Post, July 21, 2016.

If our goal is to promote diversity in the legal profession, taking affirmative steps to reduce this sort of conduct seems like a good start to me.

In fact, these sanctions tell us two important things about Rule 8.4(g). First, attorneys’ existing exposure to discipline for racist and sexist remarks shows that Rule 8.4(g) will not usher in the parade of horribles that its critics have trotted out. In 1995, one lawyer facing sanctions for sexist remarks to a fellow attorney gave the same dire warnings as Rule 8.4(g)’s critics, calling on “male lawyers, and indeed all men,” to “wake up and fight injustice before it’s too late.” Susan Marquez Owen, “Judge’s Sanction for Attorney’s Sexist Remarks Reversed,” Los Angeles Times, May 10, 1995. In the ensuing decades, male attorneys appear to have muddled through despite these warnings.

Second, these sanctions show the need for Rule 8.4(g). If attorneys feel free to make these remarks at depositions, with the stenographer reporting their words, it needs little imagination to suppose the sort of conduct that takes place off the record.

These critics’ prognostications of doom are even more overblown in light of Rule 8.4(g)’s language. The prohibition on discrimination is subject to a “knows or reasonably should know” standard. That high standard was added after a vigorous debate specifically to protect lawyers against overaggressive enforcement of the rule. Likewise, the rule expressly does not restrict attorneys from representing or declining to represent clients if it is otherwise ethical. It explicitly does not preclude otherwise ethical advocacy on behalf of our clients. Paragraph [5] of the rule’s comment underscores this by suggesting that a lawyer may strike jurors in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986), without violating Rule 8.4(g). This is hardly the stuff of Orwellian nightmares.

These critics’ fundamental concerns seem to boil down to the premise that Rule 8.4(g) tells lawyers what they can and cannot say, even after business hours. Well, yes. But lawyers are already subject to a host of similar restrictions. A brief list of unethical speech lawyers must constantly guard against, even or perhaps especially in their private lives, includes:

• inadvertently giving legal advice on a matter outside your field, for instance, by talking with your brother about his DUI at a family dinner (Rule 1.1)
• offering to represent a non-lawyer friend of a friend during a conversation at a party (Rule 7.3(a))
• recklessly saying something disparaging about a judge at any time (Rule 8.2)
• suggesting you are a specialist (Rule 7.4)
• posting on Facebook about your practice without complying with the ethical rules of every jurisdiction in which the post could conceivably be viewed (see California Ethics Opinion 2012-186, finding Facebook posts can be attorney advertising).

As my law school ethics professor aptly put it, “You are a lawyer 24/7.” In light of these existing restrictions, it is difficult to see a rule against discrimination as a radical encroachment merely because it governs our speech after hours.

The bottom line is that attorneys are held to a high standard of conduct. As Justice Cardozo famously observed, “Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them.” In re Rouss, 221 N.Y. 81, 84 reargument denied, remittitur amended, 221 N.Y. 667 (1917). The Ohio Supreme Court observed more than a century ago that lawyers are traditionally presumed to know the line between appropriate and inappropriate conduct. In re Thatcher, 89 N.E. 39, 88 (Ohio 1909). While Rule 8.4(g), like any rule governing speech, implicates the First Amendment, critics’ hyperbolic complaints do not overshadow the rule’s value in promoting diversity. Courts have a lengthy record of successfully enforcing ethical rules on lawyers’ conduct while protecting free speech. Compare Bates v. State Bar of Arizona, 433 U.S. 350 (1977) with Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) (two cases balancing attorneys’ First Amendment rights against ethical restrictions on advertising).

The question of how to promote diversity in the legal profession is undoubtedly a thorny one. Prohibiting discriminatory and harassing conduct among attorneys appears to be a modest step in the right direction.

McKean J. Evans, Esquire, is an associate at Feinstein Doyle Payne & Kravec, LLC, in Pittsburgh, Pennsylvania. He is a member of the Honorable Amy Reynolds Hay AIC.

© 2017 McKean J. Evans, Esq. This article was originally published in the March/April 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.