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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2752" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/08/scales-of-justice-3-300x244.jpg" alt="scales of justice 3" width="300" height="244">On Monday, the ABA House of Delegates amended the Model Rules of Professional Conduct&nbsp;to add a provision barring harassment&nbsp;and discrimination in all conduct related to a lawyer&rsquo;s&nbsp;practice of law.&nbsp; After months of debate, comment and revision, the <a href="http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/final_revised_resolution_and_report_109.authcheckdam.pdf">revised Resolution 109</a> passed on a voice vote, without dissenting comment from the floor.&nbsp; The version adopted reflects an amendment introduced last month, which&nbsp;changed the&nbsp;requirement for a finding of misconduct from strict liability to a &ldquo;knows or reasonably should know&rdquo; standard.
Amended Model Rule 8.4(g)
As&nbsp;amended, Model Rule 8.4(g) makes it professional misconduct to:
(g) 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. This &nbsp;paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The revised rule retains in&nbsp;new Comment [5] existing language that&nbsp;some have called &ldquo;The Batson Sentence.&rdquo;&nbsp; The sentence clarifies that&nbsp;a &ldquo;trial judge&rsquo;s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.&rdquo;
Twenty states already have varying provisions in their lawyer conduct rules addressing the subject of Rule 8.4(g) in some manner.&nbsp; For instance, in my home state of Ohio, <a href="http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf">Rule 8.4(g)</a> bars conduct &ldquo;in a professional capacity&rdquo; involving&nbsp;&ldquo;discrimination prohibited by law,&rdquo; but does not expressly touch on harassment.&nbsp; It also omits mention of gender identity, ethnicity and socioeconomic status.
Will the states follow?
The Model Rules, of course, are just that &mdash; they do not apply in any jurisdiction, and states&nbsp;are free to adopt, revise or ignore them. &nbsp;It will be interesting&nbsp;to see how the states without any express ethics rule against discrimination or harassment treat the new amendment.&nbsp; My friend Brian Faughnan, who blogs from Memphis TN, <a href="http://faughnanonethics.com/?p=1289">expressed skepticism</a>&nbsp;about how quickly his own state &ldquo;and the various bright red states around&rdquo; him &ldquo;will move to revise a version of RPC 8.4 not already prohibiting harassment and discrimination,&rdquo; although he hopes&nbsp;to be proved wrong.
The anti-discrimination/harassment amendment <a href="http://www.abajournal.com/news/article/house_of_delegates_strongly_agrees_to_rule_making_discrimination_and_harass">drew opposition</a>&nbsp;on its path to adoption, including from those who <a href="http://www.abajournal.com/news/article/proposed_revision_of_aba_model_ethics_rule_on_discrimination_sparks_controv">raised concerns</a>&nbsp;that&nbsp;the language went&nbsp;too far in restricting attorneys on matters of personal preference, conscience and religious belief.
As it moved through the year-long adoption process, the proposed amendment also drew a<a href="http://www.americanbar.org/groups/professional_responsibility/committees_commissions/ethicsandprofessionalresponsibility/modruleprofconduct8_4.html"> long list of co-sponsors</a>, including national affinity bars and many past ABA presidents, and <a href="http://www.americanbar.org/groups/professional_responsibility/committees_commissions/ethicsandprofessionalresponsibility/modruleprofconduct8_4/mr_8_4_comments.html">numerous comments</a>&nbsp;on the various drafts.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

ABA amends model ethics rules to prohibit discrimination, harassment