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.
On the 8th July 2020 the Law Council of Australia held a national roundtable to discuss sexual harassment in the legal profession and what strategies could be put in place to address the issue. The event was aimed at providing a forum for experts to develop, discusses and refine policy positions for legislative reforms, and new approaches to combat the issue.
Attendees included inclusion and diversity representatives from the Law Council’s Constituent Bodies, the Australian Bar Association, regulators of the legal profession, women lawyers’ associations, law student and university representatives and the Sex Discrimination Commissioner.
Participants agreed on several proposals for further consideration and advancement by the Law Council including:
- Specific amendments to the Sex Discrimination Act 1984 (Cth), including the extension of the prohibition of sexual harassment to all areas of life, and not just in respect of certain relationships and situations.
- Measures to facilitate cultural change in the legal profession, including the facilitation of uniform policies and approaches to sexual harassment, training, as well as further consideration of the relevant professional conduct rules.
Read the Law Society’s description of the event.
The New Zealand Law Society| Te Kāhui Ture o Aotearoa has announced a consultation on rule changes in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) and the (Lawyer: Ongoing Legal Education Continuing Professional Development) Rules 2013 (CPD), in order to combat bullying and sexual harassment in the legal profession. The proposed RCCC and CPD changes aim to clarify and reinforce conduct standards and obligations concerning discrimination, harassment, bullying and other unacceptable conduct by lawyers and employees of law practices.
The society has said that they are “committed to playing a leadership role in targeting and eliminating the culture of bullying and sexual harassment which exists in some parts of Aotearoa New Zealand’s legal community.
This work is a high priority for us in our role as the regulator of the legal profession and as one of the leaders in creating a safer, healthier and more inclusive and diverse legal culture.”
View the full consultation.
The Law Society of Alberta has extended the deadline of a consultation on an updated model code of conduct to the 30th June.
The amendments to Model Code Rule 6.3 are centred around discrimination and harassment. The draft amendments aim to provide clearer guidance on prohibitions against discrimination, harassment and bullying. This is following feedback from the recent articling survey and the launch of the model Respectful Workplace Policy.
The Society is seeking feedback from a wide range of stakeholders on draft amendments to the Model Code.
See the proposed rules as a PDF, and also see the details of the consultation as a PDF.