The American Bar Association has officially ruled it “professional misconduct” to discriminate against or harass opposing counsel, or anyone else, in court. For some, this may seem intuitive, but advocates of the new ethics rule claim that it establishes consequences for sexist and racist behavior where there previously were none.
The revision was passed Monday afternoon by a voice vote at the annual ABA meeting in San Francisco.
No longer tolerated under the new rule are “comments or actions that single out someone on the basis of race, religion, sex, disability and other factors,” the New York Times reported. This could include addressing a female lawyer or plaintiff as “honey” or “darling.”
According to the Times, nearly two dozen state bars and the District of Columbia bar already have similar prohibitions against such comments and behavior. But until now, no national rule existed.
Res 109 Adopted: Amends Rule 8.4 of Model Rules, adds anti-discrimination, anti-harassment provision. #ABAAnnual
— American Bar (@ABAesq) August 8, 2016
Penalties for inappropriate conduct will be determined by state bar associations. These might include fines or, for lawyers, suspension from practice, depending on the offense, the Times noted.
Critics have argued that the rule is too broad and could result in free speech violations and limit the freedom of attorneys to reject potential clients.
But drafters of the revised ethics rule did add qualifiers. Prohibited offensive conduct is limited to that which “the lawyer knows or reasonably should know” is harassment or discrimination. This would not apply to “legitimate” legal advice or advocacy, giving accused offenders some freedom to defend their remarks.
Still, the guidance included with the rule defines discrimination broadly as “harmful verbal or physical conduct that manifests bias or prejudice toward others.”
“Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct,” the guidance says.
It also defines sexual harassment and settings where the rule shall apply. According to the Times, those settings include the courtroom, as well as places where interaction with “witnesses, co-workers, court personnel, lawyers and others” might take place.
Myles V. Lynk, a law professor from Arizona who heads up the ABA’s Standing Committee on Ethics and Professional Responsibility, which advocated for the change, said Monday at the annual meeting that the association needed “to catch up” with states that had already adopted similar prohibitions.
“The states have not waited for the ABA to act,” he said. “They have been laboratories of change. It is time for the ABA to catch up.”