ABA Model Rule 8.4(g) Efforts in Pennsylvania

Status of Action in Pennsylvania

July 2018
Status – The Disciplinary Board of the Supreme Court of Pennsylvania is considering a proposed rule change.

After extensive review and discussion of the comments and suggestions received during the comment period from December 2016 to February 2017, the Disciplinary Board of the Pennsylvania Supreme Court determined not to move forward with the proposed amendments to Pennsylvania Rule of Professional Conduct 8.4 and instead renewed its study of the issue. On July 27, 2018, Christian Legal Society submitted a comment letter to the Disciplinary Board of the Supreme Court of Pennsylvania urging it not to adopt its newly Proposed Rule 8.4(g). Josh Blackman, Associate Professor at South Texas College of Law Houston, also submitted a comment letter opposing adoption of Proposed Rule 8.4(g).

Kim Colby wrote a Federalist Society blogpost on the unconstitutionality of the proposed rule that the Board is considering.

February 2017
Christian Legal Society filed a comment letter with the Disciplinary Board of the Pennsylvania Supreme Court supporting its proposed amendments (with two additional changes) and opposing ABA Model Rule 8.4(g).

December 2016
The Disciplinary Board of the Supreme Court of Pennsylvania is considering amending its current Rule 8.4. The Board gave notice on December 3, 2016 that it was considering recommending to the Pennsylvania Supreme Court amendments to Pennsylvania Rule of Professional Conduct 8.4. The Board is accepting comments until February 3, 2017.

At the same time, the Pennsylvania Bar Association Women in the Profession Committee (“WIP”), with the support of other Pennsylvania Bar Association entities, is circulating a separate proposal for amending Rule 8.4. This second proposal is essentially ABA Model Rule 8.4(g).

Proposed Rule Changes in Pennsylvania

Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice

Disciplinary Board Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(g) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer's professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has been exhausted.

WIP Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(g) engage in conduct the lawyer knows is harassment or discrimination as those terms are defined in applicable, federal, state or local statute or ordinance, 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 1.6. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. 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 antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). This Rule does not serve to expand upon or limit a claimant’s available rights or remedies under other law governing harassment or discrimination.

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). This Rule does not require a lawyer to accept or reject the representation of any prospective client who is a member of any pf the referenced classifications. A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).