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.