Left to right: Cassidy Chivers and Kendra Basner, Hinshaw & Culbertson
Left to right: Cassidy Chivers and Kendra Basner, Hinshaw & Culbertson ()

The legal profession has steered the nation’s fight for diversity and gender equality. Yet, while structuring, defending, and recommending concepts of right and wrong conduct to society at large, our profession has hypocritically failed to set a shining example.

The American Bar Association avows that it “maintains a longstanding commitment to diversity and inclusion in the legal profession,” stating one of its four key priorities is, “eliminating bias and enhancing diversity, … in the legal profession and the justice system” by “[p]romot[ing] full and equal participation in the association, our profession, and the justice system by all persons[.]” The ABA further maintains it, “ provide[s] leadership in legal ethics and professional responsibility through the adoption of professional standards that serve as models of the regulatory law governing the legal profession,” i.e. the Model Rules.

The California State Bar also supports and actively promotes increased diversity within the state’s legal profession. Like the ABA Model Rules, which have been adopted by the majority of states except California, California’s Rules of Professional Conduct “are intended to regulate professional conduct of members of the State Bar through discipline.” The California rules were adopted and approved “to protect the public and to promote respect and confidence in the legal profession.”

Regrettably, principle and practice are not mirror images. While it is undeniable the Bar, both nationally and at the state and local levels, is sincerely committed to promoting equal treatment of its members, and progress has been made, there is a void in the standards setting forth the proper conduct of the profession. Although the Model Rules and California’s Rules each address lawyer misconduct, those rules are largely ineffective in promoting the profession’s goals to diversify and eradicate discrimination.

ABA Model Rule 8.4 does not directly address discrimination, bias or harassment. Rather, it is a catch-all provision prohibiting “lawyer misconduct,” defined as “conduct prejudicial to the administration of justice.” See Rule 8.4(d). California Rule 2-400 entitled, “Prohibited Discriminatory Conduct in a Law Practice” has a leg up on the Model Rule simply because it expressly focuses on discriminatory conduct, but, as written, it is merely advisory.

Rule 2-400 “prohibit[s] … unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability,” but only, “[i]n the management or operation of a law practice,” under two circumstances: “(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting or terminating representation of any client.” See Rule 2-400(B). It does not address discrimination, bias or harassment in any other context. The real kicker, however, is subsection (C). No disciplinary investigation or proceeding may be initiated by the State Bar “unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred.” The finding or verdict from the required, prior litigation can only then be used as mere evidence in the State Bar action. No actual discipline can be imposed until the finding of unlawfulness is either: (1) upheld and final after appeal; (2) the time for filing an appeal has expired; or, (3) the appeal is dismissed. See Rule 2-400(C). In other words, while the rule potentially regulates discrimination, subsection (C) renders it practically ineffective because if the conduct is ultimately adjudicated not to be discriminatory, is reversed on appeal or resolved through settlement, the lawyer can escape State Bar castigation.

In mid-January, a federal judge in San Jose took it upon himself to address discrimination among opposing lawyers. He sanctioned a Southern California lawyer for making sexist remarks to a female attorney in deposition, among other reasons. The judge stated: “A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that [such] comments reflect and reinforce the male-dominated attitude of our profession.” The order further required the attorney to donate $250 to the Women Lawyers Association of Los Angeles Foundation. As the female lawyer previously pointed out to The Recorder, “this is something that almost every woman attorney has experienced again and again over their careers. This [behavior] is reflective of the usual course of business which needs to change[.]” Unfortunately, we learned last month that judges can behave badly as well.

There are anti-discrimination laws in place outside of the profession, particularly in the employment context. Laws members of our profession by and large drafted, helped implement and continue to enforce. These laws may deter a lawyer’s bad behavior to a certain extent in that particular context, but discrimination, bias and harassment are not just employment issues. The profession itself cannot begin to curb internal injustices without explicitly articulating to its members that discriminatory conduct of any kind is unacceptable and will not be tolerated.

We know the statistics, particularly as to the gender divide, due in large part to dedicated efforts to highlight this divergence. Despite the fact that men and women enter the profession at the same rate, gender equality has not been achieved. With more women building professional careers than ever before, the struggle to balance family responsibilities and the pressures of work is a reality for many. Attrition of female attorneys, due in large part to that struggle, is just one of the many problems hindering efforts to diversify our profession.

Legal ethics do not only regulate the conduct of lawyers, but also reflect the basic methods, assumptions, and propositions upon which the legal system is based and within which every lawyer operates. They further reflect, perhaps inadvertently, the profession’s view of its own role in the administration of justice. Failure to effectively address discriminatory conduct within our professional code(s) of ethics is not only in conflict with the Bar’s stated diversity goals, but essentially leaves any internal progress resting on the shoulders of members who personally believe in equal treatment and, thankfully, choose to incorporate those beliefs into their practice. Unfortunately, not every attorney responds to social pressures or shares the same moral values.

The good news: In apparent recognition of the blatant disparity between words and action, both the ABA and our State Bar (among other states) are presently considering much needed updates to these misconduct rules.

The State Bar of California’s Commission for the Revision of the Rules of Professional Conduct is currently conducting a comprehensive review of the existing Rules of Professional Conduct and preparing a new set of proposed rules for ultimate approval by our Supreme Court no later than March 31, 2017. At the November 13, 2015 open session, the Commission specifically addressed Rule 2-400. The action summary indicates, “the Rule 1-120 drafting team (that is also assigned to consider all of Model Rule 8.4) and the Rule 2-400 drafting team were assigned to combine their efforts …. To guide the joint effort, a consensus vote was taken on the question of whether current paragraph (C) of Rule 2-400 should be retained in a proposed amended rule. The Commission voted 13 yes, 3 no, and 1 abstain to eliminate current paragraph (C). It was understood that this consensus vote would not preclude consideration of a different version of that paragraph….”

The elimination of subsection (C) is not the only revision to Rule 2-400 under consideration. The Commission recently met on January 22-23, but no minutes have been publicly released. Their next meeting is scheduled to take place in San Francisco on February 19-20, 2016. Information regarding the Commission’s efforts can be found on the State Bar website: http://ethics.calbar.ca.gov/Committees/RulesCommission2014.aspx.

Even though California does not subscribe to the Model Rules, it is important to note the ABA’s efforts on this front as well because our state’s Commission ponders the Model Rules, if not to adopt, then at least as a guide. The ABA is concurrently considering an amendment to Rule 8.4, which would expressly define “professional misconduct” of a lawyer as “conduct related to the practice of law,” in which a lawyer “harass[es] or knowingly discriminate[s] against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed amendment further extends the ABA rule beyond the attorney-client relationship to include the “operation and management of a law firm or law practice.” The ABA’s proposed amendment also states: “Harassment or discrimination that violates [Rule 8.4] undermines confidence in the legal profession.” See ABA Standing Committee on Ethics and Professional Responsibility, Draft Proposal to Amend Model Rule 8.4 (December 22, 2015). The amendment is to be considered again at the ABA midyear meeting in San Diego on February 7, 2016.

By no means will an anti-discrimination legal ethics rule eradicate discrimination and instantly diversify the legal profession, but it may help. Many believe it is a step the profession must take to demonstrate it is not simply leading the charge, but leading by example.

In Practice articles inform readers on developments in substantive law, practice issues or law firm management. Contact Laurel Newby with submissions or questions at 
lnewby@alm.com.