American Bar Association Votes to Prohibit Discrimination

Edgar M. Rivera, Esq.

On August 8, 2016, the American Bar Association (“ABA”) voted at its 2016 Annual Meeting in San Francisco to prohibit discrimination and harassment in the practice of law. The ABA’s House of Delegates adopted Resolution 109, which amends Rule 8.4 of the ABA’s Model Rules of Professional Conduct to “make it clear that it is professional misconduct to engage in conduct that a lawyer knows or reasonably should know constitutes harassment or discrimination while engaged in conduct related to the practice of law,” which includes “representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while practicing law, operating a law firm and participating in bar association, business or social activities in connection with the practice of law.”  The rule prohibits harassment or discrimination based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.”

This amendment is necessary because “explicit and implicit discrimination is still pervasive in our institutions as well as across a counsel table,” said Marsha Anastasia, president of the National Association of Women Lawyers. In particular, many female lawyers have complained of undermining sexist remarks and gestures toward them while they are trying to practice their profession. Without a prohibition, advocates of the rule said, using “demeaning and misogynistic terms and actions to undermine opposing counsel and others too often does not have consequences.”  “A sexist remark,” said the Judge Paul S. Grewal of the U.S. Federal District Court in San Jose, California, “is not just a professional discourtesy, although that in itself is regrettable and all too common.”

But not all ABA members were in favor of the rule. In response to an earlier version of the resolution, 52 member attorneys signed a joint comment that the change would, for the first time, “subject attorneys to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system.” However, no lawyers spoke against the revised rule.

The ABA’s model rules have no binding effect themselves—the ABA is a voluntary organization, with no power to discipline attorneys who are not members, and even for members, the ABA can only refuse to continue their membership. States can decide whether to adopt the ABA’s rules to their rules of conduct. However, they have no obligation to do so, though the ABA’s rules greatly influence state regulatory bodies. The ABA’s influence is only as strong as its rules are persuasive.

While it is excellent news that the ABA has taken this step to protect women and minority groups, the amendment was greatly overdue. New York State has long adopted antidiscrimination and or anti-harassment provisions for its lawyers. The New York Rules of Professional Responsibility 8.4(g) provide:

A lawyer or law firm shall not … unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance.

We are proud that the ABA has confirmed its commitment to ensuring that all people are treated with respect and dignity in the courts. All discrimination is unacceptable; it has no place in our courts or law offices.

If your employer has unlawfully discriminated against you, contact The Harman Firm, LLP.