On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
The American Bar Association has announced the launch of the ABA Racial Equity in the Justice System website. A central resource aimed at providing information to ABA members, attorneys, the profession and the public on issues such as addressing bias, racism and prejudice in the justice system and society. The website will include resources such as ABA policies and positions; articles from publications; statements from the ABA; model rules and standards; CLEs and webinars; toolkits and training; links to ABA diversity, equity and inclusion entities; resources addressing courts and access to justice, law enforcement, and related statements from other bar associations and affinity bars.
ABA President Judy Perry Martinez said “The American Bar Association is intensifying its efforts to ensure justice and fairness for all … For too long, African Americans have borne the brunt of racism through laws that unjustly and disproportionately impact people of color. Through efforts like this website, we want to make it easier for lawyers to access information and become more involved in reforming our laws and improving the justice system.”
Visit the ABA Racial Equity in the Justice System website. See the ABA news release.
On February 17th, during its annual midyear meeting, the American Bar Association (ABA) House of Delegates approved resolution 115, encouraging State Bars to consider innovative approaches to expanding access to justice, particularly focused around improving the affordability and quality of civil legal services.
The resolution initially proposed by the ABA Center for Innovation and supported by several standing committees of the ABA Center for Professional Responsibility, calls on state regulators and Bars to consider regulatory innovations that would improve accessibility, affordability and quality of civil legal services. The resolution initially faced strong opposition from several Bar Associations. However, the resolution received overwhelming support from 596 member house following the addition of a provision stating: “Nothing in this resolution should be construed as recommending any changes to any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law or any other subject.” Rule 5.4 limits sharing of legal fees with non-lawyers as well as bars non-lawyer equity in law firms.
Further details about the meeting and the resolution are available here.
The proposed resolution and report are available here, with the final resolution available here.