Diversity & Inclusion
Efforts Toward Improved Diversity and Inclusion Through the Anti-Bias Rule By Nellie Q. Barnard and Christopher Heredia
Nellie Q. Barnard, an attorney at Holland & Knight LLP, practices commercial litigation with a particular focus on legal ethics, risk management for lawyer and law firms, and disciplinary defense. Christopher Heredia is an attorney at Holland & Knight LLP. He focuses his practice on legal ethics and disciplinary defense as well as risk management for lawyers, law firms, and inhouse counsel. ©2021 Nellie Q. Barnard and Christopher Heredia. All rights reserved.
Model Rule 8.4(g) of the Model Rules of Professional Conduct is the American Bar Association’s (ABA’s) long-awaited answer, at least in part, to curbing bias, discrimination, and harassment in the practice of law. There is no serious question that bias, discrimination, and harassment are present in the practice of law, and that, despite advances, the profession continues to struggle with its diversity efforts.1 For example, a national survey on Model Rule 8.4(g) asked female lawyers whether they had ever experienced discrimination, harassment, or sexual harassment and revealed that more than one out of every two women had.2 Seventy-five percent of women reported that they experienced a demeaning comment, story, or joke on account of their gender.3 On the fifth anniversary of the Model Rule 8.4(g) adoption, we look back at its implementation and recent challenges and the road ahead.
Model Rule 8.4(g) Model Rule 8.4(g), prohibits, in part, “conduct 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, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”4 Comment [3] to the rule provides that “discrimination” includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” whereas “harassment” is intended to encompass “sexual harassment and derogatory or demeaning verbal or physical conduct … unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”5 Similarly, Comment [4] provides context for specific conduct “related to the practice of law,” such as “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association business or social activities in connection with the practice of law.”6
10 • THE FEDERAL LAWYER • November/December 2021
The Goals and Scope of Model Rule 8.4(g) The ABA has recognized the unique role that attorneys play in society.7 We act as ambassadors to our legal system and guide the administration of justice. As a self-regulating profession, we hold lawyers to higher standards than the general public to maintain confidence in the integrity of both our profession and our legal system, and in recognition of the profound privilege conveyed by a license to practice law. Model Rule 8.4(g) prohibits discriminatory conduct that harms the legal profession and those involved in our justice system, a principle long recognized by courts.8 Model Rule 8.4(g) also goes further in prohibiting discriminatory conduct than do courts and other Model Rules by proscribing conduct within the many other practice-related settings, such as nonlitigation matters, matters occurring outside the courtroom, or office social functions.9 Prior to the adoption of Rule 8.4(g), 24 states and Washington, D.C., already had some form of anti-bias regulations on their books.10 Such rules typically regulated conduct in three general contexts: before a tribunal, in the course of representing a client, or conduct which was prejudicial to the administration of justice.11 Some states tied the scope of their anti-discrimination rules to conduct that also fell under the purview of other federal, state, or local anti-discrimination laws.12 For example, Illinois maintains Rule 8.4(j), which prohibits violating a “federal, state, or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflect adversely on a lawyer’s fitness as a lawyer.”13 However, similar to several other jurisdictions’ rules, this first requires findings from another court before any misconduct charges can be raised.14 These requirements have presented a challenge to meaningfully addressing discriminatory conduct in the practice of law.
Where Has Model Rule 8.4(g) Been Adopted? Seven states and/or territories, including Vermont, Pennsylvania, Connecticut, Maine, the U.S. Virgin
