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State Bar & Bar Associations,
Law Practice,
Ethics/Professional Responsibility

Jul. 24, 2020

Distinguishing between discrimination and advocacy

The ABA recently issued an ethics opinion to clarify the line between legitimate advocacy and conduct that would violate Model Rule 8.4(g).

Majchrzak david web

David M. Majchrzak

Shareholder, Klinedinst PC

Litigation, legal ethics

501 W Broadway Ste 600
San Diego , CA 92101-3584

Phone: (619) 239-8131

Fax: (619) 238-8707

Email: dmajchrzak@klinedinstlaw.com

Thomas Jefferson School of Law

David practices in the areas of legal ethics and litigation of professional liability claims.

Rosing heather web

Heather L. Rosing

Chief Financial Officer, Shareholder, Klinedinst PC

legal malpractice (specialist), business law

501 W Broadway Ste 600
San Diego , CA 92101

Phone: (619) 239-8131

Fax: (619) 238-8707

Email: hrosing@klinedinstlaw.com

Northwestern Univ School of Law

Heather serves as the chairperson of the Legal Ethics and Law Firm Risk Management Practice Group, as well as the Lawyers and Accountants Practice Group. She is an appointed advisor to the State Bar of California's Rules Revision Commission.

Context matters. It almost always does. And you do not have to be a lawyer to know that. Model Rule 8.4(g) prohibits conduct related to the practice of law that is harassing or discriminating on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. And there is probably no conduct more associated with the practice of law than advocating a client’s position. Yet, it is not uncommon for lawyers to argue positions that may directly or indirectly impact personal rights based on one or more of these factors. Allowing for that, the rule provides that it does not preclude legitimate advice or advocacy consistent with the other Model Rules.

But where that line is drawn may not be immediately clear to all lawyers. To assist with that determination, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility provided guidance through Formal Opinion 493, published on July 15. Although California’s Rule of Professional Conduct 8.4.1, provides significantly more detail than its analogue, Model Rule 8.4(g), the opinion nonetheless provides guidance to California lawyers regarding what type of conduct is permissible and what is not.

In many instances, lawyers are able to select their clients. And, as part of the interview process, they will likely discern their clients’ goals and positions. But lawyers do not get to choose whether the clients’ views will remain unchanged throughout the representation. And there will inevitably be facts that lawyers learn about after the representation has begun. Given that lawyers are encouraged to take on matters unless the cause is so repugnant as to likely impair the attorney-client relationship or the ability to represent the client, it may be that some clients have beliefs or causes whose impact discriminates based on one of the characteristics protected by the Rule.

But that does not mean that the Rule has been violated. Advocating for such a position is permissible. For example, a lawyer could represent a religious organization challenging an ordinance that requires all schools to provide gender-neutral restroom and locker room facilities. Or a lawyer presenting on affirmative action in higher education could opine that admitting students based on race to higher-ranked schools should be supplanted by admittance based on where students are more likely to excel. Or a lawyer may belong to a religious legal organization that advocates for the ability of private employers to terminate or refuse to employ individuals based on sexual orientation or gender identity. Whereas any of these situations would have dissenting views and would run a substantial risk of offending others, they are permissible in that the lawyer is providing advice or advocacy for a position.

Generally, the prohibited conduct will be that which is still related to the lawyer’s professional life, but occurs outside a courtroom, a client’s representation, or the expression of ideas on matters of public concern. Examples of this may include sexual harassment of clients or co-workers, and discriminatory hiring or employment practices.

As Formal Opinion 493 points out, the Rule provides a higher standard for conduct than the anti-discrimination laws governing not just lawyers, but the general public. By way of example, a single derogatory sexual comment may be insufficiently pervasive or sever to trigger a violation of the Civil Rights Act, but it would violate Model Rule 8.4(g).

It is also important to note that harassing conduct need not be related to a protected characteristic. It is simply conduct that is aggressively invasive, pressuring, or intimidating. By way of example, a lawyer violated the rule by sending an email to a former juror, who the lawyer accused of being a liar and hijacking the jury, before opining that the juror should get attacked.

Of course, discrimination may take many forms. And it may be manifested in many more. It need not even target the listener. In some instances, lawyers’ use of provocative comments directed at themselves may be discriminatory. This is especially true with statements that include historically abusive imagery or language.

The committee included two examples of conduct that are prohibited. A lawyer who serves as an adjunct professor would violate the Rule 8.4(g) if the lawyer repeatedly commented about a student’s appearance and made unwelcome, nonconsensual physical contact or a sexual nature with the student. Similarly, it would be impermissible for a lawyer to comment to a colleague that they should not trust other lawyers or clients who practice a particular religion.

As the opinion points out, lawyers are more than advocates. We are also ambassadors of the justice system and our conduct should be an example for what our communities strive for. How we treat one another is one of the great signs of who we are as a people. Harassment and discrimination damage public confidence and trust. If we want people to look up to our profession, we need to maintain the high ground. 

#358756

Ben Armistead

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