A New Resolution Considers Personal Conduct
The Model Rules exist to ensure lawyers have a thorough understanding of the legal system and operate justly within its parameters. But the standard of ethics by which lawyers are supposed to operate assumes more than mere mastery of the legal system. As of last December, the American Bar Association amended the Model Rule of Professional Conduct 8.4 to address harassment and discrimination in the workplace – proving ethical rules apply not only to legal landscapes but to matters of personal conduct too.
This is not to say opposition to the rule doesn’t exist. ABA officials agree Resolution 109, which amended Model Rule 8.4, encourages positive behavior and civility, but some fear the changes, in some cases, will offer more detrimental effects. Just how effective is the amended Model Rule? And do its intended positive effects outweigh potential negative ones?
This Is Why Resolution 109 Passed
Resolution 109 amended Model Rule 8.4 at an ABA Annual Meeting in San Francisco at the end of last year. The last time the model rule was reviewed by the committee was 20 years prior in 1995. The ABA recently observed that 25 states have proposed amendments addressing harassment and discrimination since that time, suggesting it was due time for an amended resolution.
More significantly, the resolution offers a solution to cases that would previously have resulted in legal lawsuits. Instead, the resolution allows individuals to file attorney misconduct complaints through local bar associations equipped with guidelines for handling sensitive issues such as these.
Therefore, the prevention of criminal action against alleged parties stood as an appealing reason to pass Resolution 109 and was unanimously agreed upon by state bar disciplinary counsels. Preventing criminal action against lawyers in these cases proved influential in the final decision, along with the realization that harassment and discrimination, performed at any point while practicing law, are abhorrent and undermine the legal profession and system.
Reasons Why Some ABA Groups Oppose the Resolution
While the majority agree harassment and discrimination will not be tolerated in any workspace, and ones that uphold legal matters at that, some ABA groups responded with criticism in response to two matters.
Firstly, the resolution before a final revision included a statement allowing lawyers to accept or deny clients at their discretion. ABA officials expected some states would disagree with this privilege, as it leaves room for litigators to discriminate against those seeking legal protection.
Secondly, the amended rule was designed to extend to all settings relating to the practice of law, a motion, some argue, that potentially stifles free speech of those engaging in conversations outside the courtroom in recreational settings. The wide realm in which issues of discrimination and harassment are now punishable is a concern for those who must consider their actions wherever they go – even outside the courtroom.
A Resolution Reflective of the Legal System
Everyone has the right to feel safe and supported in a work environment – and in life. Model Rule 8.4 was amended to give individuals who’ve been discriminated against or harassed a framework for reporting unjust incidents within the legal system. The incorporation of anti-harassment and discrimination rules also allows the ABA to address these issues internally, helping to avoid messy lawsuits with outside authorities. Therefore, the rule also serves to soften egregious matters by handling them internally.
Louraine Arkfeld offers sound judgment on the matter. She cites the final paragraph of the amendment’s report, reminding us that a lawyer’s have a professional responsibility that requires sensitivity and respect when practicing the law. Litigators should assume this responsibility not merely to avoid consequences from authorities but to uphold standards the public and society as a whole expect from a just legal system.
As firms become increasingly cognizant of proper conduct and corporate responsibility extends to recognize the rights and happiness of its employees, lawyers are wise to abide by anti-harassment and discriminatory rules in respect to civil liberties and the legal system as a whole.