The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I mentioned in my lawyer speech code post, the American Bar Association has just adopted a new provision in its Model Rules of Professional Conduct—an influential document that many states have adopted as binding on lawyers in their state. This proposal would allow lawyers to be punished for a wide range of "discrimination and harassment"; I've criticized the "harassment" ban, but here I want to focus on a different aspect of the rule, which I also discussed when the rule was first proposed (emphasis added):
It is professional misconduct for a lawyer to . . . engage in 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. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. . . .
Conduct related to the practice of law includes 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. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing [diverse] employees or sponsoring diverse law student organizations.
A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer's practice or by limiting the lawyer's practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Lawyers also should be mindful of their professional obligations . . . to provide legal services to those who are unable to pay, and their obligation . . . not to avoid appointments from a tribunal except for good cause. A lawyer's representation of a client does not constitute an endorsement by the lawyer of the client's views or activities.
So let's see how this works as to "socioeconomic status." That term isn't defined in the proposed rule, but the one definition I've seen—interpreting a similar ban on socioeconomic-status discrimination in the Sentencing Guidelines—is "an individual's status in society as determined by objective criteria such as education, income, and employment." United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991); see also United States v. Peltier, 505 F.3d 389, 393 & n.14 (5th Cir. 2007) (likewise treating wealth as an element of socioeconomic status); United States v. Graham, 946 F.2d 19, 21 (4th Cir. 1991) (same).
All of the following, then, might well lead to discipline if the ABA adopts this rule as part of its influential Model Rules of Professional Conduct, and then states adopt it in turn:
- A law firm preferring more-educated employees—both as lawyers and as staffers—over less-educated ones.
- A law firm preferring employees who went to high-"status" institutions, such as Ivy League schools.
- A law firm contracting with expert witnesses and expert consultants who are especially well-educated or have had especially prestigious employment.
- A solo lawyer who, when considering whether to team up with another solo lawyer, preferring a wealthier would-be partner over a poorer one. (The solo might, for instance, want a partner who would have the resources to weather economic hard times and to help the firm do the same.)
Back when the rule was limited to actions that were "prejudicial to the administration of justice" and didn't cover ordinary employment decisions, including socioeconomic status as one of the forbidden bases for discrimination may have made sense. For instance, insulting a witness because of his poverty, where the poverty is not relevant to the case, might reasonably be condemned. But now the rule is being broadened far beyond this. And though people pointed out the breadth of the rule when the ABA was first considering it, the ABA did nothing to materially limit the scope of the rule—apparently, it does indeed want to bar lawyers from discriminating based on socioeconomic status in choosing partners, employees and experts.
I think that, more broadly, there's no reason for state bars or state courts to go beyond the existing state and federal anti-discrimination categories when it comes to employment and similar matters. If state law bans, say, sexual orientation discrimination in employment generally, that would normally apply to law firms as well as to other firms. But if a state legislature chose not to ban sexual orientation, gender identity or marital status discrimination, I think that, too, should apply equally to lawyers. State bars and state courts may reasonably impose special rules on behavior in court, behavior with respect to witnesses, and the like; but I don't think they should become employment regulators.
Yet even if state bars and courts do want to regulate employment discrimination, they should certainly not include "socioeconomic status." To my knowledge, no state anti-discrimination law prohibits such discrimination, and there is very good reason not to prohibit it.