THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 81 ]
Proposed Amendments to the Pennsylvania Rules of Professional Conduct Relating to Misconduct
[49 Pa.B. 4941]
[Saturday, August 31, 2019]Notice is hereby given that the Disciplinary Board of the Supreme Court of Pennsylvania (''Board'') plans to recommend to the Supreme Court of Pennsylvania that it adopt amendments to Pennsylvania Rule of Professional Conduct (''RPC'') 8.4 relating to misconduct, as set forth in Annex A. This proposed rule amendment is intended to make it professional misconduct for a lawyer, in the practice of law, to intentionally manifest bias or prejudice, or engage in harassment or discrimination.
By way of background, on August 8, 2016, the American Bar Association (''ABA'') amended Model Rule of Professional Conduct 8.4 to add new paragraph (g) relating to discrimination and harassment. As adopted, the Model Rule makes it 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. This 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.''
Pennsylvania historically has supported adoption of the ABA Model Rule amendments to promote consistency in application and interpretation of the rules among jurisdictions, except where policy considerations justify a deviation from the Model Rule language.
At present, in contrast to many other jurisdictions, Pennsylvania's rules do not address harassment or discrimination in the black letter law or in the comments.1 For a significant time, both prior to and after the ABA's adoption of Model Rule 8.4(g), bar associations and related organizations and institutions in Pennsylvania have engaged in active debate over whether to include discrimination and harassment as professional misconduct. The Board supports these efforts and we conclude that it is in the best interests of the profession and the public for Pennsylvania to amend its rules to formally disapprove the conduct of any lawyer who, in the practice of law, knowingly manifests bias or prejudice, or engages in harassment or discrimination.
The proposed change to RPC 8.4 is the product of the Board's due deliberation, discussion, and extensive study and review of Model Rule 8.4(g), rules of other jurisdictions, and comments received in response to the Board's previous rulemaking efforts.2 The proposed rule promotes the profession's goal of eliminating intentional harassment and discrimination, assures that the legal profession functions for all participants, and affirms that no lawyer is immune from the reach of law and ethics.
The Board's proposal creates a new paragraph (g) and adds new comments [3] and [4] 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 or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This 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 advice or advocacy consistent with these Rules.
Comment: * * *
[3] For the purposes of paragraph (g), conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.
[4] The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.
* * *
The Board's proposal differs from Model Rule 8.4(g) in several respects: (1) it limits the scope of the prohibited activity to ''in the practice of law''; (2) it eliminates the ''reasonably should know'' standard in favor of ''knowingly''; (3) it adds the language ''manifest bias or prejudice''; (4) it clarifies the scope of the prohibited activity as ''defined in applicable federal, state and local statutes or ordinances''; and (5) it eliminates the qualifier ''legitimate'' to describe a lawyer's advocacy.
In crafting the language of the proposal, the Board studied other jurisdictions' language relative to the scope of the prohibited conduct. Thirty-four jurisdictions require that the conduct have some connection to the practice of law.3 For example, ''in the representation of a client'';4 ''in connection with the practice of law'';5 ''in a professional capacity'';6 ''in the practice of law'';7 ''in the course of representing a client'';8 and ''in connection with the lawyer's professional activities.''9
Based on our review, the Board proposes the language ''in the practice of law'' as the scope of the prohibited conduct. This scope encompasses activities that are required for a lawyer to practice law, as such activities have a sufficient and obvious nexus to the practice of law to fall within the application of the rule. Proposed comment [3] provides that ''in the practice of law'' includes a lawyer's participation in activities such as Continuing Legal Education seminars, and other activities that address that concept, such as bar association meetings and bar conferences where continuing legal education credit is offered.
The Board proposes the use of the word ''knowingly,'' which requires actual knowledge, as defined in RPC 1.0(f). The knowledge requirement prevents unintentional violation of the rule, and serves to exclude inadvertent or negligent conduct.
The Board proposes the language ''manifest bias or prejudice,'' based on the language contained in the Pennsylvania Code of Judicial Conduct. Pa.R.J.C. 2.3 governs bias, prejudice and harassment; subsection (B) prohibits judges from engaging in such conduct in the performance of their judicial duties, and subsection (C) directs judges to require lawyers to refrain from such conduct in proceedings before the court. The Board favors similar language, in order that a lawyer's ethical obligations under the RPC correspond to the conduct prohibited in the Code of Judicial Conduct.
The Board proposes the inclusion of the language ''as those terms are defined in applicable federal, state or local statutes or ordinances'' to give lawyers adequate guidance regarding what actions constitute the prohibited conduct. As set forth in proposed comment [4], this language clarifies the scope of the prohibited conduct to conform to governing substantive law.
Consistent with Model Rule 8.4(g), the Board proposes the inclusion of language relative to RPC 1.16, so that lawyers may retain professional independence and are not limited in their ability to accept, decline or withdraw from representation, except as set forth in RPC 1.16.
The Board's proposal affirms that paragraph (g) does not preclude advice or advocacy concerning the protected classes that is consistent with the Rules of Professional Conduct. This language differs from the Model Rule because it omits the adjective ''legitimate'' to describe the advice or advocacy. In the Board's view, the word ''legitimate'' is superfluous, as RPC 3.1 provides that advocacy must have merit. Additionally, the word ''legitimate'' may cause lawyers undue confusion and potentially undermine a lawyer's zealous advocacy of a client.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3381), Email address Dboard.comments@pacourts.us on or before September 30, 2019.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
MAINTAINING THE INTEGRITY OF THE PROFESSION Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
* * * * * (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
(g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This 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 advice or advocacy consistent with these Rules.
Comment: (1) Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled to take.
(2) Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving ''moral turpitude.'' That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
(3) For the purposes of paragraph (g), conduct in the practice of law includes participation in activities that are required for a lawyer to practice law, including but not limited to continuing legal education seminars, bench bar conferences and bar association activities where legal education credits are offered.
(4) The substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.
[3] (5) A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
[4] (6) Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
[Pa.B. Doc. No. 19-1309. Filed for public inspection August 30, 2019, 9:00 a.m.] _______
1 According to the most recent compilation of data analyzing 56 jurisdictions (U.S. states, the District of Columbia, and territories), at least 39 jurisdictions have anti-discrimination/anti-harassment provisions in their rules of professional conduct. Of these jurisdictions, 28 place the provision in the black letter law and 11 place the provision in the commentary.
2 The Board has engaged in review of this issue since 2016 and has proposed rule amendments on two previous occasions. See, 46 Pa.B. 7519 and 48 Pa.B. 2936. These amendments were not adopted by the Court.
3 Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Washington, D.C., Florida, Idaho, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming.
4 Among the jurisdictions that use this verbiage are Colorado, Idaho and Missouri.
5 Among the jurisdictions that use this verbiage are Arkansas and Florida.
6 Among the jurisdictions that use this verbiage are Indiana, Massachusetts, Maryland, Nebraska, New Jersey and Ohio.
7 Among the jurisdictions that use this verbiage are Iowa and New York.
8 Among the jurisdictions that use this verbiage are Arizona, Connecticut, Delaware, Maine, North Dakota, New Hampshire, Oregon, South Carolina, Tennessee and Washington.
9 Among the jurisdictions that use this verbiage are Minnesota and Wisconsin.
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