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California

ABA Model Rule 8.4(g) Efforts in California


Status of Action in California

May 2018
Status – The California Supreme Court did not consider ABA Model Rule 8.4(g) but has modified its own existing rule. 

Before the ABA adopted Model Rule 8.4(g), the California State Bar had already proposed changes to the existing California rule, which allowed discipline only for discrimination or harassment found by a non-bar tribunal to have been unlawful.

On May 10, 2018, the Supreme Court of California entered an Order adopting amendments to the Rules of Professional Conduct of the State Bar of California, including new rule Cal. R. P. C. 8.4.1 Prohibited Discrimination, Harassment and Retaliation.

New California Rule 8.4.1 retains the requirement that the discrimination or harassment be “unlawful.” The new rule, however, drops the previous rule’s requirement that a disciplinary charge could not be brought unless a non-bar tribunal had first determined that the conduct was unlawful discrimination or unlawful harassment.

The new rule is limited to three situations: 1) when representing a client; 2) when terminating or refusing to accept the representation of a client; or 3) “in relation to a law firm’s operations.” It covers the following “protected characteristics”: “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.” When a lawyer receives notice of a disciplinary charge being issued against him or her, a lawyer must notify the United States Department of Justice or the EEOC, as well as the California Department of Fair Employment and Housing.

A comment states that the rule does not apply to “conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” California also adopted a new Rule 8.5, which provides that “[a] lawyer not admitted in California is also subject to the disciplinary authority of California if the lawyer provides or offers to provide any legal services in California.”  

March 30, 2017
The Office of the General Counsel, State Bar of California, filed a request with the California Supreme Court to approve proposed amendments to the California Rules of Professional Conduct, including proposed new Rule 8.4.1. There is no timetable as to when the California Supreme Court may act on the proposed rule amendments.

March 6, 2017
The State Bar of California is sponsoring an ethics symposium on Friday, April 21, 2017 at the Loyola Law School in Los Angeles. Included in the topics to be discussed is an "Analysis of the significant changes made by the proposed new rules of professional conduct." More information can be found by clicking here (http://www.calbarjournal.com/March2017/YouNeedtoKnow.aspx).

September 27, 2016
Christian Legal Society submitted a comment letter to the California State Bar regarding the proposed changes to its current Rule 2-400 and its proposed Rule 8.4.1. California's current "bias" rule requires that a tribunal other than the state bar find that an attorney has committed "unlawful discrimination" before a disciplinary charge may be brought. One proposed alternative would delete that requirement. Click here to read the comment letter CLS filed in California.

September 23, 2016
The California Bar Association, which is revising its ethics rules, is currently accepting comments. The comment period ends at 5p.m., Tuesday, September 27, 2016.

Among the revisions to CA Rule 8.4.1 are two alternative proposals. The first would make it professional misconduct to harass or discriminate on the basis of 20 protected characteristics. One version would also remove the current requirement that an attorney be found by a court to have engaged in unlawful harassment or discrimination before a disciplinary charge could be brought. That proposal would also require the state bar to notify the federal Department of Justice or the Equal Employment Opportunity Commission when it issues a disciplinary charge against an attorney under Rule 8.4.1.

The National Center for Law & Policy, a California organization, invites individual California attorneys and/or organizations to sign onto a comment letter. Any attorney wishing to sign the letter can send their formal name and California Bar number to Amy Cappelletti, ACappelletti@nclplaw.org, by close of business on Monday.

Any attorney wishing to submit individual comments can do so here. CLS will be filing a letter on behalf of the organization.

August 12, 2016
The California Bar Association is accepting comments on California’s proposed rule change on the same issue. There is a commission to change Rule 2-400 to ABA Model Rule Rule 8.4.1. There are two versions.

We believe these changes are just as objectionable as the ABA Proposed Model Rule 8.4 Rule change. A local bar association sent out an article that purports to address the numerous changes being made to the Rule of Professional Conduct in California and in that article they discuss the 8.4.1 change regarding discrimination, harassment and retaliation. Click Cal. Rules Redo Marries Borrowed Rules With Old and New | Bloomberg BNA to read the article.

They are also calling for public comment on the changes, which will be open until September 27, 2016.

Comments can be submitted to RRC2 Proposed Rules Public Comment FormX.


Proposed Rule Changes in California

Current Rule 2-400 Prohibited Discriminatory Conduct in a Law Practice
(A) For purposes of this rule:

(1) "law practice" includes sole practices, law partnerships, law corporations, corporate and governmental legal departments, and other entities which employ members to practice law;

(2) "knowingly permit" means a failure to advocate corrective action where the member knows of a discriminatory policy or practice which results in the unlawful discrimination prohibited in paragraph (B); and

(3) "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public.

(B) In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age, or disability in:

(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or

(2) accepting or terminating representation of any client.

(C) No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule 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. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule. In order for discipline to be imposed under this rule, however, the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed.

Discussion
In order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule.

A complaint of misconduct based on this rule may be filed with the State Bar following a finding of unlawfulness in the first instance even though that finding is thereafter appealed.

A disciplinary investigation or proceeding for conduct coming within this rule may be initiated and maintained, however, if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court's inherent authority to impose discipline, or other disciplinary standard.

Proposed Rule 8.4.1 Prohibited Discrimination, Harassment, and Retaliation
(a) In representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not:

(1) unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic; or

(2) unlawfully retaliate against persons.

(b) In relation to a law firm’s operations, a lawyer shall not:

(1) on the basis of any protected characteristic,

(i) unlawfully discriminate or knowingly permit unlawful discrimination;

(ii) unlawfully harass or knowingly permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract; or

(iii) unlawfully refuse to hire or employ a person, or refuse to select a person for a training program leading to employment, or bar or discharge a person from employment or from a training program leading to employment, or discriminate against a person in compensation or in terms, conditions, or privileges of employment; or

(2) unlawfully retaliate against persons.

(c) For purposes of this rule:

(1) “protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived;

(2) “knowingly permit” means to fail to advocate corrective action where the lawyer knows of a discriminatory policy or practice that results in the unlawful discrimination or harassment prohibited by paragraph (b);

(3) “unlawfully” and “unlawful” shall be determined by reference to applicable state and federal statutes and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public; and

(4) “retaliate” means to take adverse action against a person because that person has (i) opposed, or (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by paragraphs (a)(1) or (b)(1) of this rule.

(d) A lawyer who is the subject of a State Bar investigation or State Bar Court proceeding alleging a violation of this rule shall promptly notify the State Bar of any criminal, civil, or administrative action premised, whether in whole or part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding.

(e) Upon being issued a notice of a disciplinary charge under this rule, a lawyer shall:

(1) if the notice is of a disciplinary charge under paragraph (a) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing and the United States Department of Justice, Coordination and Review Section; or

(2) if the notice is of a disciplinary charge under paragraph (b) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing and the United States Equal Employment Opportunity Commission.

(f) This rule shall not preclude a lawyer from:

(1) representing a client alleged to have engaged in unlawful discrimination, harassment, or retaliation;

(2) declining or withdrawing from a representation as required or permitted by rule 1.16; or

(3) providing advice and engaging in advocacy as otherwise required or permitted by these rules and the State Bar Act.

Comment
[1] Conduct that violates this rule undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal. A lawyer may not engage in such conduct through the acts of another. See rule 8.4(a). In relation to a law firm’s operations, this rule imposes on all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its other lawyers or nonlawyer personnel. Law firm management and supervisorial lawyers retain their separate responsibility under rules 5.1 and 5.3. Neither this rule nor rule 5.1 or 5.3 imposes on the alleged victim of any conduct prohibited by this rule any responsibility to advocate corrective action.

[2] The conduct prohibited by paragraph (a) includes the conduct of a lawyer in a proceeding before a judicial officer. (See Canon 3B(6) of the Code of Judicial Ethics providing, in part, that: “A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation against parties, witnesses, counsel, or others.”) A lawyer does not violate paragraph (a) by referring to any particular status or group when the reference is relevant to factual or legal issues or arguments in the representation. While both the parties and the court retain discretion to refer such conduct to the State Bar, a court’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (a).

[3] A lawyer does not violate this rule by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations. A lawyer also does not violate this rule by otherwise restricting who will be accepted as clients for advocacy-based reasons, as required or permitted by these rules or other law.

[4] This rule does not apply to conduct protected by the First Amendment to the United States Constitution or by Article I, § 2 of the California Constitution.

[5] What constitutes a failure to advocate corrective action under paragraph (c)(2) will depend on the nature and seriousness of the discriminatory policy or practice, the extent to which the lawyer knows of unlawful discrimination or harassment resulting from that policy or practice, and the nature of the lawyer’s relationship to the lawyer or law firm implementing that policy or practice. For example, a law firm non-management and non-supervisorial lawyer who becomes aware that the law firm is engaging in a discriminatory hiring practice may advocate corrective action by bringing that discriminatory practice to the attention of a law firm management lawyer who would have responsibility under rule 5.1 or 5.3 to take reasonable remedial action upon becoming aware of a violation of this rule.

[6] Paragraph (d) ensures that the State Bar and the State Bar Court will be provided with information regarding related proceedings that may be relevant in determining whether a State Bar investigation or a State Bar Court proceeding relating to a violation of this rule should be abated.

[7] Paragraph (e) recognizes the public policy served by enforcement of laws and regulations prohibiting unlawful discrimination, by ensuring that the state and federal agencies with primary responsibility for coordinating the enforcement of those laws and regulations is provided with notice of any allegation of unlawful discrimination, harassment, or retaliation by a lawyer that the State Bar finds has sufficient merit to warrant issuance of a notice of a disciplinary charge.

[8] This rule permits the imposition of discipline for conduct that would not necessarily result in the award of a remedy in a civil or administrative proceeding if such proceeding were filed.

[9] A disciplinary investigation or proceeding for conduct coming within this rule may also be initiated and maintained if such conduct warrants discipline under California Business and Professions Code §§ 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard.