Should Arizona adopt the controversial model anti-bias ethical rule?

Should Arizona adopt the controversial “anti-bias” rule that is now part of the American Bar Association’s Model Rules of Professional Conduct?

As a lawyer whose practice focuses on professional responsibility (and who knows a thing or two about legal ethics), I think we should. As a lawyer who happens to be a woman – who has seen bias and prejudice in action in the legal profession – I think we should.

Regardless whether you agree with me, you should review rule-change petition R-17-0032, which proposes that Arizona adopt the new Model Rule 8.4 provision. Comments on the petition are due May 21, 2018.

Filed by the National Lawyers Guild Central Arizona Chapter, the rule-change petition discusses the social science showing, it says, how “bias has not evaporated but is very much endemic in the legal profession” thus requiring improved legal protections for historically disadvantaged groups.

Almost two years ago, the ABA amended Model Rule 8.4 to add a new paragraph (g) that says it is 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.

Model Rule 8.4(g) further provides it “does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16” nor bans “legitimate advice or advocacy consistent with these Rules.”

The broad sentiment behind Model Rule 8.4(g) is not new. Before the ABA adopted Model Rule 8.4(g), Model Rule 8.4 included anti-discrimination and anti-harassment language in a comment, but not in the rule itself. It linked the conduct to Model Rule 8.4(d), which prohibits conduct "prejudicial to the administration of justice." The previous comment 3 to Model Rule 8.4 provided:

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

The broad sentiment behind Model Rule 8.4(g) is also not new in Arizona. The Supreme Court adopted the ABA’s previous comment 3 in 2001, adding “gender identity” to the list of categories in 2003. We still have that version of the comment 15 years later.

Rule-change petition R-17-0032 is not the first attempt since 2003 to revise the comment or the rule to address bias and discrimination. In 2010, the State Bar filed rule-change petition R-10-0031, which essentially proposed importing the substance of comment 3 into the text of ER 8.4. After extensive objections were filed, the State Bar withdrew that petition, with a plan to appoint a task force to study the issue. Rule-change petition R-13-0019 resulted. That petition and another filed by an individual lawyer, R-12-0018, both proposed keeping but revising comment 3. The Supreme Court ultimately rejected both petitions.

Those previous attempts were not based on nationally vetted model language. Don’t get me wrong: I endorse homegrown efforts. I've been involved with plenty, and have one non-Model Rule rule-change proposal pending now. While the ABA encourages each jurisdiction to adopt ABA model rules, most jurisdictions tend to tweak them. Some make wholesale changes. While mostly adopting the Model Rules of Professional Conduct, our Supreme Court has changed the language of some rules and customized others.

Model Rule 8.4(g), however, has been extensively vetted by the ABA, which bills itself as the national representative of the legal profession. One of the ABA’s four goals is to eliminate bias in the legal profession and justice system and enhance diversity.

Model Rule 8.4(g) is different in several ways from the previous Model Rule 8.4 comment and Arizona’s current comment. The new rule:

• Substitutes the more specific phrase “harassment or discrimination” for “bias or prejudice.” (A comment notes that the substantive law of anti-discrimination and anti-harassment statutes and case law may guide application of Model Rule 8.4(g).)

• Uses the more understandable phrase “engage in conduct that the lawyer knows or reasonably should know” and eliminates “knowingly manifests by words or conduct."

• Adds to the preexisting eight prohibited bases three new ones: ethnicity, gender identity, and marital status. (Arizona’s version of the comment has nine categories because, unlike previous Model Rule comment 3, it includes gender identity.)

Model Rule 8.4(g) also explicitly addresses one reason some lawyers have objected to anti-bias provisions: their belief that they would be forced to take on clients to whom they might have moral objections. Model Rule 8.4(g) “does not limit the ability of a lawyer to accept, decline, or withdraw from a representation.”

I agree that we need to adopt Model Rule 8.4(g) – it probably would be our ER 8.4(h), because we already have a (g) related to noticing judges for improper cause – for the reasons stated in the petition plus several others.

First, anti-bias language needs to be in a rule, not a comment. Comments are not rules. The preamble to the Arizona Rules of Professional Conduct addresses this point twice. See Preamble, paragraph 14 (“Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.”), and paragraph 21 (“The comments accompanying each Rule explain[] and illustrate[] the meaning and purpose of the Rule… The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.”) The ABA report proposing Model Rule 8.4(g) noted that the Model Rule 8.4 anti-bias provision was “the only example in the Model Rules where a Comment [purports] to ‘solve’ an ethical issue that otherwise would require resolution through a Rule.”

Second, Model Rule 8.4(g) broadens the scope of the anti-bias sentiment. The former Model Rule comment 3 – the one we still have – requires that the conduct be “in the course of representing a client” and “prejudicial to the administration of justice.” Model Rule 8.4(g) is not limited the same way. While the conduct must be “related to the practice of law,” it need not be prejudicial to the administration of justice, which often is construed to mean involving court proceedings and processes. New comment 4 to Model Rule 8.4 explains that 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.

Third, adding explicit anti-bias language in a black-letter rule frankly elevates the importance of the sentiment. The report to the ABA House of Delegates proposing Model Rule 8.4(g) points out that by adopting former comment 3, “the ABA did not squarely and forthrightly address prejudice, bias, discrimination and harassment as would have been the case if this conduct were addressed in the text of a Model Rule.” If we’re serious about combatting discrimination and harassment in the practice of law in Arizona, we need to put the prohibition front and center in a rule.

Fourth, putting that prohibition front and center in a rule drives home the point to the public that the legal profession strives to be fair and unbiased, and that we expect to be held to that standard.

Finally, having a clear, separate prohibition in the rule puts lawyers on notice about prohibited conduct. The existing comment 3 does not explain how a lawyer “knowingly manifests by words or conduct, bias or prejudice.” New Model Rule 8.4(g) comment 3 better defines the prohibited conduct. For example, it defines discrimination as including “harmful verbal or physical conduct that manifests bias or prejudice towards others.” It defines harassment as including “sexual harassment and derogatory or demeaning verbal or physical conduct” and sexual harassment as including “unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”

Other jurisdictions have split over whether to adopt Model Rule 8.4(g), and some lawyers contend the rule is unnecessary or unconstitutional. The ABA Journal wrote about the differing opinions in October 2017. According to the ABA’s implementation chart, among the 50 states and the District of Columbia, as of March 2018, only Vermont had adopted Model Rule 8.4(g) while Illinois, Minnesota, Montana, and South Carolina have declined to do so. But many states already have what the ABA calls “pre-existing rules analogous to Model Rule 8.4(g)”: California, Colorado, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Rhode Island, Washington, and Wisconsin.

Arizona doesn’t have a pre-existing rule analogous to Model Rule 8.4(g). We should adopt it and the new accompanying comments that explain it.