A proposed professional conduct rule that could subject attorneys to disciplinary action for behavior deemed harassment or discrimination has been hotly debated by Arizona’s legal community, in what could be a harbinger for similar debates around the country.
A model anti-discrimination rule was put forth by the American Bar Association in 2016—long before the #MeToo movement raised awareness of sexual discrimination and harassment issues. And while some states have already considered adoption of the rule—with many rejecting it—others have yet to decide.
Monday marked the deadline for public comments to the Arizona Supreme Court on whether the state should incorporate the ABA’s model rule 8.4(g) of professional conduct. The model rule, as adopted by the ABA in 2016, considers it “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.”
In the run-up to that deadline, critics of the model rule urged the Arizona Supreme Court—which has authority to regulate the practice of law in the state—to reject the proposed change, raising a slew of different arguments. The critiques included contentions that the rule was too broad and would unfairly restrict lawyers’ free speech rights.
Among about 20 lawyers or groups to weigh in against the rule in Arizona was a trio of lawyers from the Phoenix office of Am Law 200 firm Snell & Wilmer—partners John Bouma and Andrew Halaby, and associate Lindsay Short. They focused their opposition on arguments that the rule would be overreaching and that it does not contain any guidance on the types of discipline that lawyers might face for breaching anti-discrimination provisions.
“To adopt a rule governing lawyers’ conduct, without also telling lawyers what fate might befall them for a violation, would amount to adopting a half-rule—and one fundamentally unfair to the practicing bar,” the Snell & Wilmer lawyers wrote on May 14.
Meanwhile, proponents of the rule also weighed in, with some of them arguing that discrimination has no place in the legal profession and that it makes sense to encode that tenet, with the potential for lawyers to be disciplined for not abiding. Among the supporters, which included a group of 10 people and organizations, was Lambda Legal Defense and Education Fund Inc., an advocacy group for LGBT rights.
“The adoption of these nondiscrimination requirements in the Arizona Rules of Professional Conduct as a formal rule is necessary to make clear to attorneys and to the public the importance of eliminating bias and discrimination in the legal profession. Refraining from discrimination and harassment should be a specific requirement for all attorneys,” Lambda Legal wrote in public comments on Monday.
The public comments in Arizona mark just the latest state bar debate over the ABA model rule.
The ABA in March indicated that 13 states are “studying” whether to adopt the rule change. In addition to Arizona, the rule is currently under consideration in New Hampshire, Idaho, Pennsylvania and Utah, among others. The status of the process differs across those states—in some, public comment periods have already ended; New Hampshire’s comment period is still open until the end of May.
The only state to have fully adopted the rule is Vermont, although just last week California adopted a version of the rule as part of a broader package of changes to the professional conduct standards for lawyers in the state.
Even as some states are considering the proposed rule change, others have already rejected it. Louisiana, Nevada and South Carolina all rejected adoption of the rule in their professional code of conduct. In Texas, meanwhile, state’s attorney general Ken Paxton effectively shut down a potential rule change in late 2016 when he issued an opinion arguing that it would run afoul of the First Amendment. And instead of adopting the rule in Montana, the state’s legislature determined that the rule change would put the state Supreme Court in a position of regulating free speech.
According to the ABA’s most recent status update—current as of March 20—Illinois and Minnesota have also declined to adopt the anti-bias law, but the ABA said those states already have “analogous” anti-discrimination rules on the books.
With the debate playing out in Arizona, New Hampshire, and several other states, the discussions could be influenced by the #MeToo movement, which has ushered in a recent public awakening over sexual harassment and discrimination issues.
In California, for example, the recent professional conduct rule changes for lawyers included a version of the ABA’s model rule. After it was adopted, at least a few observers noted the #MeToo connections, saying that while the public mood around harassment issues might not have precipitated a rule change, it certainly didn’t hurt the proposal’s chances.