Samuel C. Stretton. Samuel C. Stretton.

The rule involving discipline for harassment and discrimination is in the comment period.

I saw the proposed amendments to the Pennsylvania Rules of Professional Conduct, particularly Rule 8.4(g). This involves professional discipline for harassment or discrimination. Has this been adopted yet?

The Pennsylvania Supreme Court has proposed an amendment, that adds Subsection G to Rule 8.4 of the Rules of Professional Conduct. The proposed Rule 8.4(g) reads as follows:

“It is professional misconduct for a lawyer to (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, social economic status, or political affiliation (except employment discrimination unless resulting in a final agency or judicial determination). This paragraph does not limit the ability of the lawyer to accept, decline, or withdraw from representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.”

This rule has not been adopted yet and is subject to a comment period.

The rule is based to some extent on the American Bar Association’s Model Rule 8.4(g). This rule is also apparently proposed to conform to some extent with the Pennsylvania Code of Judicial Conduct, Rule 2.3, prohibiting bias, prejudice, and harassment by judges. Comments for or against the rule can be submitted to the Office of Secretary of the Disciplinary Board of the Supreme Court of Pennsylvania at their Harrisburg location.

Under the rule, there are three comments—Comments 3, 4, and 5—that help to define what harassment is and what bias and prejudice is. What’s interesting in the rule itself is it prohibits discrimination on social economic status. It’s hard to understand what that means. Does that mean one has to represent a poor client if they can’t pay? Obviously, it would not mean that, but it certainly could be defined a little better. The rule, very broadly written, leaves an attorney open to many frivolous complaints. The rule could open up a massive number of complaints flooding the Office of Disciplinary Counsel. The language is so imprecise that it is very difficult not to violate the rule just by the simple act of turning down a case.

But there are other problems with the rule. Obviously, no one would be against discrimination based on gender, race, sex, religion, etc. There are federal statutes and Pennsylvania statutes that prohibit such conduct. The question is why is this placed as a mandatory regulation in the Rules of Professional Conduct?

Understanding the intentions are probably good, the problem is that the legal profession is grossly overregulated. Just the other week, the court adopted a rule about what to do with monies in escrow when people can’t be found. That’s been a problem for years and it’s been dealt with by lawyers. There is no need to regulate this and make it a disciplinary violation if one handles it a little differently. Many lawyers used to escheat the money to the state or give it to charity. Now one has to go through a procedure and can be disciplined if they don’t.

This overregulation is found in the recordkeeping requirement. Now, one has to keep financial records according to how Rule 1.15 and Pennsylvania Rules of Disciplinary Enforcement 221 require. Although some of those procedures are not bad ideas, a lawyer shouldn’t be disciplined if they don’t maintain the records quite the way the board wants. The legal profession is not made for this kind of micromanagement.

If a lawyer discriminates against someone or acts in an inappropriate or improper fashion, several things normally happen. The lawyer can be sued. If there is sexual harassment, then the lawyer can be charged criminally pursuant to Pennsylvania Criminal Statutes. If the lawyer acts badly, it can be embarrassing and the lawyer can lose business as a result. But, the problem is making it a Rule of Professional Conduct where a lawyer could lose their livelihood. There is no need to regulate the legal profession on every minute point now being a basis for professional discipline.

Soon there will be rules and regulations about what computer program you have to use or what time sheets you have to use, etc. But, what many of the drafters of these rules don’t realize is most lawyers aren’t making a fortune. Many lawyers are struggling, particularly smaller firms. Although these rules sound wonderful in theory, they can become very burdensome in practice.

The Rules of Professional Conduct involve ethics. They involve doing the right thing for clients, such as competence, diligence, communication, handling clients’ fees correctly, not presenting false testimony, and not having conflicts of interest. That is the core of legal ethics. Not stealing clients’ funds is a critical part of this. Acting in a fiduciary and responsible fashion is what legal ethics attempts to uphold.

But, over the last 15 or 20 years, rules now have advanced from ethics to a way of running one’s life. I can be disciplined if I don’t use the forms and ledger sheets that the rules require. Now if a secretary or a client accuses me of harassment, I could lose my law license. This goes far beyond legal ethics. It’s worrisome that being a lawyer now requires one to comply with a code that defines how you act in life with the resulting punishment of loss of legal license.

This means if a lawyer fires a secretary—and someone perceives it is because she is getting married or that she has become pregnant and they are being discriminated against—these are now disciplinary complaints. It’s going to flood the Office of Disciplinary Counsel with work and it’s also going to put a huge stress and strain on the legal profession.

The problem is that lawyers are never going to be perfect. They are human beings like everyone else. A lawyer has to be ethical, which means doing the best job for the client in every aspect. But, the lawyer shouldn’t be disciplined nor should the code start to tell them how to run their life and discipline for every misstep.

Years ago there was a dispute over whether there should be a disciplinary rule requiring lawyers to have fee agreements. That rule was adopted, Rule 1.5(b). Although it was clearly a good idea for lawyers to have written fee agreements, they shouldn’t be disciplined if they choose not to. The world of litigation or breach of contracts can deal with that issue.

By overregulating the profession, one starts to interfere with the profession’s independence. As noted, it’s burdensome to lawyers to have rule after rule to comply with.

The recent requirements by the Pennsylvania Supreme Court in terms of confidentiality and exhibits being certified is an extremely burdensome thing for most lawyers. There is really no need for that other than to conform to some ideal world that doesn’t exist and never will.

Therefore, this new rule will probably come into effect, but it’s hopeful that someone on the Pennsylvania Supreme Court will start to realize the difference between ethical regulation and micromanaging a lawyer’s life and practice. But, if that realization doesn’t come at some point, the independence of the legal profession is going to be severely impaired and no one is going to want to be a lawyer anymore. These rules are very worrisome and are going to open a floodgate of frivolous complaints and are going to have a very negative impact on the legal profession.

If a mistake was made in a client’s case, inform them to seek independent counsel.

I made a mistake on a client’s case and the case has been dismissed. I called the client in and want to settle the case for what I consider a reasonable amount. Can I do so?

No. If the lawyer made a mistake in the client’s case, a conflict can arise between the lawyer and the client. Obviously, it’s commendable if the lawyer wants to rectify the mistake, but the question becomes is the proposed rectification adequate? Obviously, there is a conflict. The lawyer may think the proposed settlement is adequate, but it may not be for the client’s purposes. When the client sits down with the lawyer who made the mistake, the client still looks at that person as their lawyer. The client may not realize that the lawyer now has a conflict of interest in trying to resolve this.

Therefore, the best practice would be to tell the person that they should seek independent counsel. This practice is memorialized in Rule of Professional Conduct 1.8(h). That rule under Rule 1.8(h)(2) precludes a lawyer from settling a claim for legal liability with an unrepresented client or former client unless that client or person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel.

This is a good rule. It allows clients to make a rational decision and also get needed advice. This conflict advice has to be given in writing and the client has to waive the advice in writing. If the client chooses to waive the advice and accept whatever resolution the lawyer is doing, that is permissible. But, the client has to be advised of the conflict and the right to seek independent counsel.

But, under the circumstances as suggested in the question, the lawyer cannot resolve the case that way. Though 1.8(h) has been in the rules for many years, it’s surprising how many times lawyers will attempt to settle a case without giving the conflict advice. A lawyer has to always remember law is a profession and the client’s interests are always first.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.