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Abstract

The legal profession is a self-regulated profession, in that rules that govern lawyer conduct are written by lawyers. In 1983, the House of Delegates of the American Bar Association (“ABA”) promulgated the ABA Model Rules of Professional Conduct (“MRPC”) for lawyers and the Model Code of Judicial Conduct for judges in 2007. The MRPC specifically provides the baseline for the standards of the legal profession’s conduct. All states, except California, have adopted the MRPC in some form or variation. The ABA Standing Committee on Ethics and Professional Responsibility (“SCEPR”) issues ethics opinions to help interpret the MRPC. Since the MRPC are recommendations, states are not bound by them. When any changes to the MRPC are made, states may, but need not, adopt the changes.

The ABA Model Rule that defines professional misconduct is Rule 8.4. This rule holds that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, to commit a criminal act, to engage in conduct involving dishonesty or fraud, to engage in conduct that is prejudicial to the administration of justice, to state or imply an ability to influence a governmental agency, or to knowingly assist a judge in conduct that violates the judicial rules of conduct. One of the Comments to Rule 8.4, Comment 3, states that a lawyer also engages in professional misconduct if they engage in discriminatory conduct that prejudices the administration of justice. Specifically, Comment 3 reads: A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

On August 8, 2016, the SCEPR presented Resolution 109 to the ABA House of Delegates at the ABA Annual Meeting in San Francisco. Resolution 109 proposed to eliminate Comment 3 to ABA Model Rule 8.4 and to create a new paragraph (g) to Rule 8.4, to place an anti-discrimination and anti-harassment provision in the black letter of the MRPC. The ABA House of Delegates unanimously and without opposition adopted Resolution 109, which is now ABA Model Rule 8.4(g).

Notably, the adoption of Rule 8.4(g) was supported by the Association of Professional Responsibility Lawyers (“APRL”).

This article is intended to be a primer for those who want to have a better understanding as to how Rule 8.4(g) came to be adopted by the ABA, why it was met with such strong opposition and the nature of the “crusade” to persuade states to reject its adoption. The first section will discuss the process that led to the creation and adoption of Rule 8.4(g) by the ABA. The second section will discuss why it was believed that an anti-discrimination and anti-harassment provision was needed in the black letter of the ethics rules. The third section will discuss the nature of the opposition against the rule. The fourth section will discuss the Illinois anti-discrimination rule; how it compares to Rule 8.4(g); and how Illinois responded to Rule 8.4(g) as of this date. The primer will conclude with final thoughts.

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