Before anyone gets too worked up, there are two critical points worth noting: First, this is not yet a done deal, as even within the lean-in group formerly known as the American Bar Association, there are lawyers, even academics, who refuse to allow their feelings to trump their intellectual honesty. They know this is a mad dash down the road to perdition.
Second, the ABA’s model rules are suggestions. States can then choose whether to incorporate them into the actual code of ethics or laugh at them. The ABA has already lost what little credibility remained when it decided to hop aboard the diversity and inclusion train.
Yet, there remains this inkling of fear that either codgers who remember the ABA when it was relevant, or youngsters and academics, who tend to become involved with committees to either establish their brand or further their political agenda, will take this seriously. And for that reason, it’s worth noting that the latest effort to change the Model Rule 8.4 is insane.
It is professional misconduct for a lawyer to:
(g) harass or discriminate 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 Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.
The explanatory comment for this change provides:
 Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others because of their membership or perceived membership in one or more of the groups listed in paragraph (g). Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of anti-discrimination and anti-harassment statutes and case law may guide application of paragraph (g).
Eugene Volokh parses two aspects of this change, the imposition of a speech code as an ethical proscription on lawyers, and the inclusion of “socioeconomic status” as discrimination. On the former, he states:
So say that some lawyers put on a Continuing Legal Education event that includes a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side says something that is critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar.
Don’t get hung up on the example. It’s just an example, not the scope of the issue. Eugene goes into greater depth, and offers other examples as well. And as for socioeconomic status, he offers:
So let’s see how this works as to “socioeconomic status.” That term isn’t defined in the proposed rule, but the one definition I’ve seen — interpreting a similar ban on socioeconomic status discrimination in the Sentencing Guidelines — is “an individual’s status in society as determined by objective criteria such as education, income, and employment.” (Citations omitted.)
All of the following, then, might well lead to discipline if the ABA adopts this rule as part of its influential Model Rules of Professional Conduct, and then states adopt it in turn:
- A law firm preferring more-educated employees — both as lawyers and as staffers — over less-educated ones.
- A law firm preferring employees who went to high-“status” institutions, such as Ivy League schools.
- A law firm contracting with expert witnesses and expert consultants who are especially well-educated or have had especially prestigious employment.
- A solo lawyer who, when considering whether to team up with another solo lawyer, preferring a wealthier would-be partner over a poorer one. (The solo might, for instance, want a partner who would have the resources to weather economic hard times (and to help the firm do the same.)
- A law firm preferring lower-socioeconomic-status employees, giving someone who is poor or unemployed a hand up (even when its goal is not “to promote diversity,” because it’s not consciously looking for a workforce of mixed socioeconomic status, but simply to help the poor).
This is not a debate over whether you think it’s bad to discriminate on these bases, or talk about controversial subjects in a way that some find hateful. This is about turning political views into ethical proscriptions. This is about making a lawyer’s license subject to acquiescing to the political flavor of the day.
The old anti-discrimination proscription was subject to the caveat that it be “prejudicial to the administration of justice.”
Back when the rule was limited to actions that were “prejudicial to the administration of justice” and didn’t cover ordinary employment decisions, including socioeconomic status as one of the forbidden bases for discrimination may have made sense. For instance, insulting a witness because of his poverty, where the poverty is not relevant to the case, might reasonably be condemned. But now the rule is being broadened far beyond this.
This barely scratches the surface of the latent issues involved. Would it be an ethical violation for a firm to have gendered bathrooms? Would it be an ethical violation to require a new lawyer to wear a suit to court, if he lacks the money to pay for one? What about a decent suit? Could he wear that suit to an LGBT meetup? Could he even ask, or be told?
But the larger question is why would the ABA get itself embroiled in progressive political issues as a matter of legal ethics? That they want to have a policy that everyone drive a Prius to save the earth is fine. It’s not like anyone will give a damn. That they seek to inform state bars to modify their codes of conduct to make it unethical to drive any car but a Prius is nuts.
But we can’t talk any more about it, as it might be perceived as derogatory verbal conduct toward lawyers who can’t afford to buy a Toyota, and I would hate to be disbarred over this.