This August, the ABA House of Delegates adopted Model Rule 8.4(g) with the goal of reducing the amount of harassment and discrimination in the legal profession.
The ABA Model rule says it is considered “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.” 8.4(g) adds that it does not limit the attorney’s ability to “accept, decline or withdraw from a representation” nor does it preclude “legitimate advice or advocacy consistent with these Rules.”
As the Rule was passed, we argued both sides of the issue representing both the pros and cons of the matter. The Illinois State Bar Association Assembly also weighed the arguments of those in favor and opposition, and formally announced at its December Midyear meeting that it would recommend Illinois oppose the adoption of the ABA Model Rule 8.4(g).
The ISBA Assembly believed the rule does not properly define “discrimination” and “harassment” to properly apply the Rule to achieve its intent. Model Rule 8.4(g) also raised a number of concerns about subjecting lawyers to unfounded disciplinary complaints. It was further discussed that Illinois Rules of Professional Conduct 4.4 and 8.4(d) and (j) already address discrimination and harassment associated with the practice of law here in Illinois.
One of the other arguments regarded faith and other religious beliefs. According to the ISBA Midyear agenda, “the potential inability of lawyers employed by faith based organizations to advise their employers on permissible religiously-based employee conduct standards (such as marriage or human sexuality)”. Likewise, it was concerning that “the proposal would have a chilling effect on the willingness of lawyers to participate and serve on boards of religious organizations whose tenets might be considered discriminatory under the proposal.”
Ultimately, it will be up to the Illinois Supreme Court to decide if the adoption will occur here in Illinois.
The opposition of ABA Model Rule 8.4(g) wasn’t the only hot button issue addressed at this December’s ISBA Midyear. The ISBA also reviewed the adoption of the following matters: the ISBA futures report, the adoption of the UBE, and a collaborative law rule – all of which were approved by the ISBA Assembly.
As the profession continues to evolve, so too will the practices here in Illinois. As these and many more changes come our way, the Commission on Professionalism is here to inform lawyers and the public.