Pennsylvania Adopts Variant of ABA Model Rule 8.4(g)

The Pennsylvania Supreme Court, with one recorded dissent, finally acted on a process that began in 2016.

Yesterday, the Pennsylvania Supreme Court adopted a variant of ABA Model Rule 8.4(g). Justice Mundy dissented. Since 2016, the Disciplinary Board of the Supreme Court of Pennsylvania had proposed three different versions of an anti-harassment. The December 2016 proposal was limited to violations of anti-discrimination law. The May 2018 proposal tracked ABA Model Rule 8.4(g), but expressed some concerns about possible First Amendment violations. The August 2019 proposal, however, threw those cautions to the wind, and adopted a very broad definition of "conduct in the practice of law." Regrettably, the Pennsylvania Supreme Court adopted the most recent version, which had disregarded earlier concerns about the First Amendment. This post will trace the history of these proposals, and critique the adopted rule.

December 2016 Proposal

In December 2016, the Disciplinary Board of the Supreme Court of Pennsylvania released a proposed amendment to Pennsylvania Rule of Professional Conduct. It would now be misconduct to:

(g) violate 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 reflects adversely on the lawyer's fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statue or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer's professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court of administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.

46 Pa.B. 7519.

This amendment was not adopted.

May 2018 Proposal

In May 2018, the Disciplinary Board of the Supreme Court of Pennsylvania invited comments on a second proposed amendment. This proposal consisted of one rule, with three comments.

(g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation (except employment discrimination unless resulting in a final agency or judicial determination). This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Comments:

(3) Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics.

(4) Harassment, as referred to in paragraph (g), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.

(5) Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

48 Pa.B. 2936.

The May 2018 proposal did not recommend adopting Rule 8.4(g) "wholesale."

First, there were a few important revisions. The Board recognized that the "broad scope of the language 'conduct related to the practice of law'" in the Model Rule could extend to "lawyers 'participating in bar association, business or social activities in connection with the practice of law.'" Specifically, the Board expressed "grave concerns that adoption of such language would unconstitutionally chill lawyers' speech in forums disconnected from the provision of legal services." Therefore, the Board proposed an alternative: "'in the practice of law' as a more narrowly-tailored scope of prohibited conduct." The Board "conclude[d] that private activities are not intended to be covered by this proposed rule amendment, since to do so would increase the likelihood of infringing on constitutional rights of lawyers." ABA Model Rule 8.4(g) applies to those who "engage in conduct that the lawyer knows or reasonably should know is harassment."

Second, the proposed Amendment also applied a more stringent mens rea standard: one who "knowingly manifest bias or prejudice, or engage in harassment." This is a positive development, and would exclude situations where the subjective feelings of a listener may result in an ethics violation. The misconduct must be knowing, and deliberate.

In July 2018, I submitted a letter praising some of the revisions, but criticizing other elements. The May 2018 proposal was not adopted.

August 2019 Proposal

In August 2019, the disciplinary board proposed a third revision based on Rule 8.4(g):

(g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statues or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

Comments:

(3) For the purposes of paragraph (g), conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.

(4) The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.

In September 2019, Eugene Volokh and I submitted a letter critiquing this third proposal.

ABA Model Rule 8.4(g) applies to "conduct related to the practice of law." Both the second and third proposals use somewhat more narrow language: "words or conduct" "in the practice of law."  Yet, comment three substantially broadens that sphere: "conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are." On its face, this rule could prohibit certain types of speech at a CLE debate, for example. Moreover, the "including but not limited to" language potentially opens up the rule to an infinite number of fora. The third proposal was even broader than the second proposal.

ABA Model Rule 8.4(g) prohibits certain types of harassment with respect to several protected classes. The third proposal goes even further. It regulates "including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status." Once again, the "including but not limited to" language substantially broadens the scope of prohibited speech. What is included? An attorney will have to guess.

Moreover, the third proposal removed the definition of "harassment" from comment four. That definition, though quite vague, still gave attorneys some insights into how the rule could be applied. The current version goes in the opposite direction: it gives potentially conflicting directions. Now, comment four states "The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct." Here, the word "guide" offers attorneys, as well as the courts, little guidance of what is, and is not prohibited speech. For example, federal, state, and local discrimination laws have different standards. Which law applies? And there is still no definition of harassment, a nebulous term. This sort of vagueness creates serious First Amendment problems.

Pennsylvania Supreme Court adopted the August 2019 Proposal

In June 2020, the Pennsylvania Supreme Court adopted the August 2019 proposal, verbatim. (Justice Mundy dissented).

(g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

Comment:

* * *

[3] For the purposes of paragraph (g), conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.

[4] The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.

The criticisms Eugene and I offered with respect to the August 2019 proposal apply equally to the adopted rule. In many regards, the April 2019 proposal is worse than the May 2018 proposal. The earlier version showed some concerns about the First Amendment. The adopted version threw those cautions to this wind.

This rule can be used to censor protected speech, and worse, will chill attorneys who seek to engage in protected speech.

I wrote about the history of ABA Model Rule 8.4(g) in the states for the Catholic Law Review's symposium. Alas, it is now out of date.