Academic journal article Harvard Journal of Law & Public Policy

Discriminatory Lawyers in a Discriminatory Bar: Rule 8.4(g) of the Model Rules of Professional Responsibility

Academic journal article Harvard Journal of Law & Public Policy

Discriminatory Lawyers in a Discriminatory Bar: Rule 8.4(g) of the Model Rules of Professional Responsibility

Article excerpt

Lady Justice is blindfolded; her servants are not. Instead, because they are human, their predilections and aversions abound. A central challenge of the legal system, then, is how to manage the inevitable tension between impartial justice and biased agents. In some situations, the response is a strict rule against bias. Judges, for example, must avoid even "the appearance of impropriety." (1) Similarly, the Model Code of Judicial Conduct prohibits membership in organizations that "practice[] invidious discrimination." (2) But in other situations, bias is allowed. For example, an attorney can escape court-appointed representation when "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." (3) We doubt the ability of attorneys to advocate for people or positions they find morally repugnant, and we recognize that clients will suffer from the resulting deficient representation. (4) More generally, attorneys need not volunteer to represent any particular client. (5) Even though this means some clients might not receive the most skilled attorney, it also means that lawyers have considerable ability to avoid clients of whom they disapprove.

The American Bar Association's most recent attempt to deal with the tension between bias and justice is Model Rule 8.4(g). (6) The Rule bans both "harassment" and "discrimination" by lawyers against eleven protected classes. It applies to essentially every aspect of an attorney's professional life--to "conduct related to the practice of law." (7)

There are two opposing reactions to this Rule. Some argue it is needed to prevent sexual harassment, invidious discrimination, and other evils. (8) Others criticize the Rule, claiming it will suffocate vigorous advocacy and exclude unpopular views from the legal profession. (9)

This Note ventures into that debate. Part I explores the two positions on Rule 8.4(g). Those who favor it desire to promote professional decorum, create an inclusive profession, and protect minority clients. Those opposed are concerned about chilling First Amendment activities and depriving clients with discriminatory views of effective representation. Part II then discusses how the Rule might be interpreted or amended so as to vindicate many of the Rule's objectives while satisfying many of the legitimate concerns about over-broad regulations. These amendments would narrow the definition of "discrimination," interpret broadly the existing protection for "legitimate advocacy," and restrict the scope of regulated activity. Finally, Part III addresses concerns that the proposed amended rule leaves too much room for discrimination. It argues that preventing harassment through informal means avoids concerns about establishing a "speech code" while still distancing the profession from discriminatory actions. At the same time, it allows the Bar to protect freedom of expression and the institutional diversity needed for meaningful discourse.

I. ARGUMENTS FOR AND AGAINST THE RULE

The debate over Rule 8.4(g) occurs on two levels. One is interpretive: how far does the Rule actually reach? That is the focus of Part I.A. The other is substantive: should the Rule reach as far as it does? Parts I.B and I.C consider substantive arguments for and against the Rule.

A. Rule 8.4(g) is susceptible to multiple interpretations

We begin with the interpretive debate. Rule 8.4(g) states:

   It is professional misconduct for a lawyer to ... engage in
   conduct that the lawyer knows or reasonably should know
   is harassment or discrimination 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 paragraph
   does not limit the ability of a lawyer to accept, decline or
   withdraw from a representation in accordance with Rule
   1. … 
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