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ABA takes stronger stance on harassment, discrimination

August 24, 2016

An amendment adding anti-discrimination and anti-harassment language to the American Bar Association’s model rules for professional conduct has stirred some controversy, but Indiana lawyers are already operating under such provisions. Some say such rules are necessary to increase diversity in the profession.

The ABA House of Delegates approved the amendment during the association’s annual meeting in August. The new Model Rule 8.4 prohibits conduct that an attorney “knows or reasonably should know” is harassment or discrimination against someone on the basis of such things as race, religion, gender, disability, and LGBTQ status.

Cunningham Cunningham

Hall Render Killian Heath & Lyman attorney Norris Cunningham said the new rule along with initiatives to bring in more minorities, women and members of the LGBT community has helped to “normalize” diversity and inclusion in the profession. “… It allows attorneys to just be themselves without being overly concerned about who they are and how they’re going to be treated.”

When he started his career as an attorney in 1996, it was not too far removed from the enactment of the 1964 Civil Rights Act and he remembered how sometimes people reminded him – “and not in a nice way” – that he was an African-American.

There are still pockets of misconduct, he said, but the comfort level with working among attorneys of a different race or gender has grown as people from different backgrounds enter the profession. Cunningham sees the new rule as helping the profession continue to make “real effort and real strides” toward diversity and inclusion.

Both solo practitioner Patrick Olmstead and Inman & Fitzgibbons Ltd. associate Sonia Das pointed out the rule puts into black letter the unacceptable behaviors and provides recourse for attorneys who are discriminated against or harassed.

Whether the rule will ultimately help or hinder the profession, Das was uncertain. But she noted the debate surrounding the adoption of the amendment served as a good reminder of the high ethical standards attorneys are supposed to meet.

‘Chilling effect’

Opponents of the rule change raised concerns the amendment would have the effect of trampling certain views and possibly getting lawyers disciplined simply because other people disagreed with them.

The Christian Legal Society, in particular, asserted the rule would have “chilling effect on attorneys’ ability to continue to engage in free speech, religious exercise, assembly, and expressive association in the workplace and the broader public square.”

garnet Garnett

Notre Dame Law School professor Richard Garnett agreed, saying the rule is inconsistent with the tradition of the legal profession.

Attorneys are educated to value free speech and their role in society as advocates, he said, but the new language could be misused to keep lawyers from talking about certain matters. With the amendment being broadly written, the rule could be invoked against those who espouse unpopular political views. So some may decide to be quiet rather than risk being labeled a bigot which, in turn, would “chill the marketplace of ideas.”

Evansville solo practitioner Michelle Cox supports the rule change but said she understands the concerns of other attorneys. She pointed to the comments accompanying the rule that state the conduct covered includes participating in social activities related to the practice of law. How broadly “social activities” is interpreted could have troubling implications for free speech and free association if, for example, lawyers are disciplined for speaking out in church against same-sex marriage.

Indiana’s rule

Indiana might provide an example of what effect such a rule can have. Indiana is among the states that already have anti-discrimination provisions in their codes of conduct. In fact, the Hoosier version, Rule of Professional Conduct 8.4(g), actually incorporates broader language than the ABA.

Instead of attorneys having to know or should know their behavior is discriminatory, Indiana holds that lawyers commit professional misconduct when they “engage in conduct,” regardless of their level of awareness, that is biased on the basis of such things as race, gender, religion and socioeconomic status. Also, the Indiana rule explicitly bans prejudice based on sexual orientation.

patrick olmstead Olmstead

Referring to the debate surrounding the ABA’s model rule, Olmstead, who has represented lawyers before the Indiana Supreme Court Disciplinary Commission, said the Indiana rule has not prevented attorneys from talking about what they want.

Still, he sees the possibility for the Hoosier provision to be challenged in court. If enforcing the rule in a particular instance was perceived as stifling free speech, then that section in the code of conduct could be subject to a federal lawsuit.

The Indiana rule has been the basis for disciplinary action at least three times since 2000.

Attorneys Dorothy Thomsen and Vincent Campiti received public reprimands for their conduct in court.

In 2005, Thomsen was the first attorney to be brought before the disciplinary commission under Professional Conduct Rule 8.4(g). Representing the husband in a divorce proceeding, she referred to the wife’s African-American friend as “the black man” or “the black guy” and injected race into the proceedings where it was not relevant. Thomsen is currently suspended from the practice of law as a result of a subsequent disciplinary action.

Campiti, representing a father at a child support modification hearing, was found in 2009 to have made “repeated disparaging reference to the facts that the mother was not a U.S. citizen and was receiving legal services at no charge.”

Also in 2013, Joseph Barker was given a 30-day suspension with automatic reinstatement for professional misconduct during his representation of a father in a custody dispute. In a letter sent to opposing counsel, he referred to the mother as “an illegal alien” and instructed, “I want you to repeat to her in whatever language she understands that we’ll be demanding she be put in jail for contempt of court.”

Second-generation bias

Practicing law for 24 years, Cox lived through the transition from what she described as first-generation discrimination to a second-generation type.

She has seen the legal profession evolve from the days when female attorneys were called “babe” and “sweetie” and sometimes had to fend off inappropriate sexual advances. But now the bias is less obvious. Women attorneys are still not on equal footing with their male colleagues in terms of their pay, opportunities to handle major clients or be promoted to partner.

The ABA model rule addresses those second-generation issues, Cox said. Removing the barriers created by discrimination and harassment will enable female lawyers to be more engaged and stay in the workplace longer, which will benefit the entire profession.

Das has also seen changes in the profession since she began practicing in 2000. As a young attorney, she saw organizations that treated diversity as a drawback to attracting clients but now more organizations are embracing diversity. Law firms have become more committed to removing discrimination and harassment from the workplace and hiring attorneys from different backgrounds.

“We still have improvement that can be made, but overall, more people are more aware of what is appropriate conduct and what is not, and more people are willing to say something to correct inappropriate behavior or educate,” Das wrote in an email. “… And overall, I think that is a good thing.”•

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