Maine Adopts Debated ABA Anti-Harassment and Discrimination Rule

ABA Rule 8.4(g)Last month, Maine became the second state to adopt ABA Rule 8.4(g). However, some critics fear the controversial anti-harassment and discrimination rule may be unconstitutional.

The rule says it’s professional misconduct for a lawyer to, “engage in conduct or communication related to the practice of law 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, or gender identity.”

The rule goes on to say, “Declining representation, limiting one’s practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g).”

The Maine Supreme Court approved the rule effective June 1, 2019. The rule was slightly amended from the version that the ABA House of Delegates unanimously passed in 2016. The ABA rule also bars discrimination based on marital or socioeconomic status.

The debate on ABA Rule 8.4(g)

Harassment and discrimination remain a significant challenge for the legal industry. A recent international survey conducted by the International Bar Association and market research company Acritas found that over one-third of women (36.6%) and almost 10% of men (7.4%) said they’ve been victims of sexual harassment in the legal profession.

In addition, a 2018 study on gender bias showed that 58% of women attorneys of color and half of white women lawyers surveyed said they’ve been mistaken for administrative staff or janitors. Only 7% of white male lawyers had experienced a similar occurrence. The study was sponsored by The Minority Corporate Counsel Association and the American Bar Association.

Critics, however, contend that Rule 8.4(g) could be too subjective. They argue that the narrowly drawn rule may impede lawyer speech on matters of public concern that could be viewed as demeaning to others. Additional concerns have been raised on the grounds of “religious liberty,” primarily an objection to legal equality across communities and sexual orientation.

In 2017, Vermont became the first state to formally adopt Rule 8.4(g). Several other states have formally or informally declined to adopt or consider adoption of the rule. More than 25 jurisdictions already have provisions in their Rules of Professional Conduct prohibiting discrimination and harassment by lawyers.

Where Illinois stands

In December 2016, the Illinois State Bar Association Assembly voted to oppose adoption of the Rule 8.4(g) in Illinois. Because the rule doesn’t define “discrimination” and “harassment,” the Assembly found that it could subject lawyers to unfounded disciplinary complaints.

In addition, the ISBA Assembly pointed to Illinois Rules of Professional Conduct 4.4, 8.4(d) and 8.4(j) as already addressing discrimination and harassment associated with the practice of law in the state.

The Illinois Supreme Court has not taken an official stance on ABA Rule 8.4(g) at this time.

 

Laura Bagby
As Communications Director, Laura develops and executes strategy to elevate the Commission among attorneys and judges in Illinois. Laura leverages communications channels to educate and engage with the legal community in support of the Commission’s mission of increasing civility and professionalism to enable the administration of justice. When she’s not in the office, you’ll find Laura taking in a show at one of Chicago’s top-notch theatres, planning her next international trip or hanging out in Lincoln Park with her one-eyed Chihuahua, Manny.
Laura Bagby

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Laura Bagby
As Communications Director, Laura develops and executes strategy to elevate the Commission among attorneys and judges in Illinois. Laura leverages communications channels to educate and engage with the legal community in support of the Commission’s mission of increasing civility and professionalism to enable the administration of justice. When she’s not in the office, you’ll find Laura taking in a show at one of Chicago’s top-notch theatres, planning her next international trip or hanging out in Lincoln Park with her one-eyed Chihuahua, Manny.
Laura Bagby

2 thoughts on “Maine Adopts Debated ABA Anti-Harassment and Discrimination Rule

  1. Actually, Maine adopted a version of the Model Rule which differs significantly from the ABA Model Rule.

    The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination. Second, the Maine rule actually tries to define the concepts of discrimination and harassment as they apply to the rule. And, most importantly, third, although the Maine rule adopted the Model Rule’s language of “related to the practice of law” to define when the rule applies, extending it from the more limiting “when representing a client”, the adopted rule in Maine does not extend the notion of “the practice of law” as much as the Model Rule does. Unlike the Model Rule which extends the notion of “related to the practice of law” to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law. Thus, although the language used is the same, the meaning is very different.
    This change is in response to a common criticism of the Model Rule — the fact that it expands the application of the rule to conduct outside the practice of law.

    As for the case in Illinois, Illinois has had a version of an anti-discrimination rule for a long time which is better than the Model Rule.

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