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.”