2016 Luncheon Keynote
DISCRIMINATION
IN THE LEGAL PROFESSION:
Remodeling the Model Rules
Dean Emerita
Drucilla Stender Ramey
Golden Gate University School of Law
“Law is the least diverse profession in the nation,
and lawyers aren’t doing enough to change that.”
Professor Deborah L. Rhode
The Washington Post 5/27/15
Dean Emerita Drucilla Stender Ramey
A charismatic public speaker and fierce civil rights advocate, Dean Emerita Drucilla Stender Ramey
has for 40 years served as a national leader and spokesperson on equal access and opportunity in the
system of justice and broader society. Formerly a civil rights attorney at the East Bay firm of Treuhaft,
Walker & Bernstein and thereafter a litigator of tri-ethnic school desegregation and employment
discrimination cases at the Mexican American Legal Defense and Educational Fund (MALDEF), Ms.
Ramey went on to serve as the renowned Executive Director and General Counsel of the Bar
Association of San Francisco. BASF’s nationally replicated initiatives over those years included
development of the nation’s largest and most comprehensive bar-sponsored pro bono legal services
program and the Association’s overarching diversity program intended to vastly increase the hiring,
advancement and promotion to partner of people of color, women, and members of the LBGTQ and
disability communities. These initiatives included the California Minority Counsel Program, cofounded by Ms. Ramey and then-Wells Fargo General Counsel Guy Rounsaville, as well as the Balboa
and Mission High Schools’ Law Academy and School-to-College Programs and dozens of other
programs to address and overcome barriers facing groups previously marginalized in the profession
and greater society.
As Executive Director of the National Association of Women Judges in New York, Ms. Ramey led a
wide array of successful NAWJ efforts to ensure a more independent, diverse and accessible judicial
system. Subsequently, as Dean of Golden Gate University School of Law and Professor of
Professional Responsibility, she focused her efforts on diversifying the faculty and student body and
expanding the School’s public interest focus and clinical/skills training programs. In addition to
consulting for, among others, the Open Society Foundation, the American College of Trial Lawyers
and the American Board of Trial Advocates, Ms Ramey has also served as a frequent public speaker
and commentator to courts, universities, the ABA, state and local bar associations, and individual
firms and corporations on issues including leadership development, opportunities in public interest law
and community service, diversity and inclusion, equal educational and employment opportunity, and
equal access to justice.
Ms. Ramey has served as co-founder and board leader of numerous organizations, including as Chair
of the San Francisco Commission on the Status of Women, the first woman Chair of the ACLU of
Northern California, a founding board member of the Immigrant Legal Resource Center, and Founding
Vice-President of California Women Lawyers. Her many honors and awards include the American
Bar Association’s Margaret Brent Women Lawyers of Achievement Award, the American Jewish
Committee’s Learned Hand Award, Equal Rights Advocate’s Champion of Justice Award, the
National Bar Association’s Wiley Branton Award, the National LGBT Bar Association’s Allies for
Justice Award, Chinese for Affirmative Action’s Civil Rights Award and the United Nations
Committee on the Elimination of Discrimination Against Women Award.
A graduate of Yale Law School and Harvard College, magna cum laude, Ms. Ramey currently serves
on boards including as Board Chair of Equal Rights Advocates, Board member of the Habeas Corpus
Resource Center, and Trustee on the Board of Managerial Trustees of the International Association of
Women Judges.
MEMORANDUM
TO:
Standing Committee on Ethics and Professional Responsibility
FROM:
ABA Standing Committee on Legal Aid and Indigent Defense
ABA Section on Civil Rights and Social Justice
Equal Rights Advocates 1
RE:
Draft New Model Rule of Professional Conduct 8.4(g) and Draft
Amended Comment [3]
DATE:
March 11, 2016
These comments are filed on behalf of the ABA Standing Committee on Legal Aid and Indigent
Defense (SCLAID 2, the ABA Section on Civil Rights and Social Justice (CRSJ, formerly IRR) 3
and Equal Rights Advocates (ERA). 4
SCLAID, CRSJ and ERA join with the ABA Goal III Commissions and many others in our
profession in applauding the efforts of the Standing Committee on Ethics and Professional
Responsibility (SCEPR) to study and recommend draft proposed amendments to ABA Model
Rule of Professional Conduct 8.4 and Comment [3] to that Rule, for the purpose of effectively
addressing the ethical ramifications of discrimination and harassment by attorneys in conduct
related to the practice of law.
While, as set forth more fully below, we recommend a number of changes to the currently
proposed language and proscriptions, we commend SCEPR’s stated conclusion, as contained in
1
The submitting ABA entities and Equal Rights Advocates are indebted to Drucilla Stender Ramey, who distilled
their views and prepared this Memorandum. Dru is former Executive Director and General Counsel of the Bar
Association of San Francisco, past Executive Director of the National Association of Women Judges, Dean Emerita
of Golden Gate University School of Law, and former Chair of the San Francisco Commission on the Status of
Women. Ms. Ramey was a co-founder of the California Minority Counsel Program and numerous other diversityrelated initiatives, is an ABA Foundation Life Fellow and recipient of the ABA Margaret Brent Women Lawyers of
Achievement Award, the American Jewish Committee’s Learned Hand Award and the NBA’s Wiley Branton
Award. She currently serves as Chair of the Board of Directors of Equal Rights Advocates.
2
Established in 1920, the ABA Standing Committee on Legal Aid and Indigent Defense (SCLAID) serves as the
ABA's principal entity tasked with examining issues and initiating projects and programs relating to the delivery of
civil legal services and criminal defense services to indigent persons.
3
Created in 1966 at the height of the civil rights movement, the ABA Section of Civil Rights and Social Justice
(CRSJ), formerly the Section of Individual Rights and Responsibilities (IRR), is the only membership entity within
the ABA dedicated solely to civil rights, civil liberties and human rights issues. Through education and advocacy,
the Section expresses the profession's commitment to achieving through the legal system the American ideals of
justice, freedom and equality for all.
4
Equal Rights Advocates (ERA) is one of the nation’s leading public interest advocacy organizations committed to
protecting and expanding the rights of women and girls to economic and educational equality.
its Memorandum dated December 22, 2015, that proscription of harassment and discriminatory
conduct must be the subject of a distinct rule within the black letter of the Model Rules of
Professional Conduct, both as a practical matter of enforceability and in recognition of the fact
that the Model Rules serve as “…a statement of the minimum expected by all lawyers. It is time
that harassment and discriminatory conduct by a lawyer based on race, religion, sex, disability,
LGBTQ status or other factors, be considered professional misconduct when such conduct is
related to the practice of law…Any such conduct brings disrepute to the profession. Rather, the
public has a right to know that as a largely self-governing profession we hold ourselves to
normative standards of conduct in all our professional activities, in furtherance of the public’s
interest in respect for the rule of law and for those who interpret and apply the law, the legal
profession.” SCEPR Memorandum, p. 7
SCLAID, CRSJ and ERA urge you to recommend to the ABA House of Delegates their adoption
of a new Model Rule 8.4(g) that states, once and for all, that discrimination, harassment and
manifestations of bias and prejudice in our professional lives as lawyers are unethical and may
be subject to discipline. We urge the ABA to join the numerous states that have already adopted
such rules for their own jurisdictions without the benefit of an ABA Model Rule.
We largely concur in the positions and rationales therefor contained in the excellent January,
2016 Memorandum and earlier filings by the ABA Commission on Sexual Orientation and
Gender Identity (SOGI). Because SOGI’s Memorandum contains a full and complete analysis of
the critically important impact the new Rule will have on non-lawyer participants in the justice
system, as well as on the broader public’s perception of a fair and impartial system of justice,
this Memorandum will focus on the proposed Rule’s potentially enormous potential to effect
positive change in the legal profession itself. We will also elaborate on certain of SOGI’s other
enumerated areas of concern, but will begin by briefly stating our summary positions on selected
areas within the proposed Model Rule’s ambit.
I.
SUMMARY POSITIONS
SCEPR’s current draft amendment establishing M.R. 8.4(g) reads:
It is professional misconduct for a lawyer to:
(g) in conduct related to the practice of law, harass or knowingly discriminate
against persons on the basis of race, sex, religion, national origin, ethnicity,
disability, age, sexual orientation, gender identity, marital status or
socioeconomic status.
SCLAID, CRSJ and ERA recommend that SCEPR propose the following Model Rule 8.4(g):
It is professional misconduct for a lawyer to:
(g) engage in words or conduct, while acting in a professional capacity, that
harasses, manifests bias or prejudice, or otherwise discriminates on the basis of race,
national origin, gender identity/expression, marital status, or socioeconomic status.
2
1. We strongly support a new Model Rule 8.4(g) that makes it professional misconduct for a
lawyer to harass, discriminate, [or engage in words or other conduct manifesting bias or
prejudice] (see paragraphs 3 and 4 below), on the basis of race, sex, religion, national
origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or
socioeconomic status, and we join in SOGI’s suggestion that “gender expression” be
added as a protected category of persons.
2. We believe that draft Model Rule 8.4(g) correctly includes a prohibition on harassment
and discrimination against the protected groups, but suggest that Comment [3] be
amended to contain definitional clarity as to the meanings of “harassment” and “sexual
harassment,” respectively, along the lines of language contained in Comments [3] and [4]
to Rule 2.3(C) of the Model Code of Judicial Conduct.
3. In addition to the current draft Rule’s prohibition on conduct which harasses or
discriminates against the protected groups, we recommend that the language specifying
the conduct proscribed by this Rule be amended to include the terminology employed by
Rule 2.3(C) of the Model Code of Judicial Conduct (which perforce addresses litigationrelated proceedings only), characterizing impermissible attorney conduct as follows: “A
judge shall require lawyers in proceedings before the court to refrain from manifesting
bias or prejudice, (emphasis added) or engaging in harassment, based upon (enumerated
bases). 5
Model Rule 8.4’s current Comment [3], as well as the ethical codes adopted by many of
the 23 states that have enacted their own separate rules in this area, employ similar
language, including those of Missouri, Indiana, Massachusetts, Colorado and
Washington. The enforcement agencies of these states do not report having experienced
any upsurge in spurious claims under these provisions, and have proven to be fully
capable of determining the substantiality and validity, or lack thereof, of claims brought
under their entity’s rules in this area and in determining appropriate levels of discipline,
including private reproval, just as they do with respect to all other cases.
We believe that the “manifesting bias or prejudice” language has a familiar and well
accepted meaning in the profession and the judiciary, and is congruent with Rule 2.3(C)
of the Model Code of Judicial Conduct. Hence, we join SOGI in recommending the
addition of language forbidding engagement in conduct “...that manifests bias,
prejudice,…” (emphasis added).
4. Proposed M.R. 8.4(g) should be amended specifically to prohibit words and conduct
(emphasis added), in order to prevent any possible misunderstanding as to the new Rule’s
5
Should this language be added, we would recommend including definitional clarity in Comment [3] to new Rule 8.4 along the
lines of Comment [2] to Model Rule of Judicial Conduct 2.3 (C) , which provides examples of bias or prejudice as including but
not limited to “…epithets; slurs, demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes;
threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity or nationality and crime; and
irrelevant references to personal characteristics….”
3
coverage of verbal (oral or written) expression which constitutes harassment, [manifests
bias or prejudice] or [other] discrimination] As members of SCEPR, of course know,
long-established precedents under Title VII and other anti-discrimination statutes, ethical
rules and court rules establish that words may be actionable if they are of the proscribed
discriminatory nature.
In two recent federal decisions, for example, the judges awarded sanctions against male
lawyers for unethical conduct including sexist statements (“You’re not getting
menopause, I hope” and “[D]on’t raise your voice at me. It’s not becoming of a
woman…”) directed toward female opposing counsel. Quoting from a recent ABA
landmark federal court study which established that women are dramatically
underrepresented among the ranks of lead counsel, especially in civil cases, and even
more so in class actions, 6 Puerto Rico District Court Judge Francisco Beso and Northern
California Magistrate Judge Paul S. Grewal both cited to the Report’s findings that,
“inappropriate or stereotypical comments” directed at female attorneys by opposing
counsel were ‘“one of the causes of the marked underrepresentation of women in lead
trial attorney roles…When an attorney engages in discriminatory behavior, it reflects not
only on the attorney’s lack of professionalism, but also tarnishes the image of the entire
legal profession and disgraces our system of justice…”’ (Judge Beso), and such conduct
is “…among the more overt signifiers of the discrimination, both stated and implicit, that
contributes to [women’s] underrepresentation in the legal field.” (Magistrate Judge
Grewal) 7
5. As more fully discussed below, SCLAID, CRSJ and ERA’s strongly oppose SCEPR’s
inclusion in the new draft Model Rule 8.4(g) of the requirement that the discrimination be
“knowing,” a requirement which threatens to substantially gut the intent and successful
application of the new Model Rule.
6. We agree with the the Commission on Disability Rights and others that Comment [3]
should be amended to expressly state that the failure to provide reasonable
accommodations to a person with a disability is a manifestation of disability
discrimination prohibited under Rule 8.4 (g).
7. We agree with SOGI that the definition of the draft Rule’s prohibited conduct on the
basis of socioeconomic status should be defined in Comment [3] to clarify what is and is
not covered. We specifically urge amendment of Comment [3] to clarify the most
6
Stephanie A. Scharf & Roberta Liebenberg, First Chairs at Trial: More Women Need Seats at the Table, 14-15
(2015), http://www.americanbar.org/content/dam/aba/marketing/women/first_chairs2015.authcheckdamm.pdf,
(based on case filings in the U.S. District Court for the Northern District of Illinois and finding, e.g., that 76% of
lead counsel in civil cases, and 86% in class actions, were men.
7
Cruz-Aponte v. Caribbean Petroleum Corp, Case No. 09-cv-02092, 2015 WL 5006213 (U.S.D.C.-D.P.R., Aug.
17, 2015); Claypole v. County of Monterey, Case No. 14-cv-02730 (U.S.D.C.-N.D.Cal., Jan. 12, 2016). Judge Beso
additionally cites numerous cases imposing sanctions for attorneys’ reference to female opposing counsel as “babe,”
“bimbo,” ”crazy chicken,” “girl,”, “dear,” “hon,” “little girl,” “little lady,” and “little mouse.”
4
frequent manifestations of discrimination by lawyers with respect to low-income
individuals and communities who turn to the courts for justice. 8
8. We concur in SOGI’s recommendation, as well as the suggestion made at the February 7,
2016 hearing by the representative of the ABA Women’s Commission, that Rule 8.4(g)’s
ambit of proscription be changed from the current draft language, “related to the practice
of law,” to instead read “while acting in a lawyer’s professional capacity,” with
definitional clarification added to Comment [3] to indicate that the Rule’s intended
coverage includes, e.g., participation in professional activities such as bar association
work (cf., the New Jersey Supreme Court’s Comment in this regard), 9 and coverage of
the kinds of extra-office misconduct occurring on the way to and from, as well as during,
outside-the-office proceedings and social gatherings, as described by the Women’s
Commission representative and CRSJ’s Robert Weiner.
9. We support draft Comment [3]’s statement that proposed M.R. 8.4 (g) applies to “…the
operation and management of a law firm or law practice.”
10. We join SOGI in urging the re-inclusion in draft Comment [3] of the words, “A lawyer
may not engage in such conduct through the acts of another,” a not uncommon scenario
in the context of discriminatory conduct, and one addressed in other contexts by Model
Rules 5.1(b) and (c), “Responsibilities of Partners, Managers, and Supervisory Lawyers”
and Model Rule 5.3, “Responsibilities Regarding Nonlawyer Assistance.”)
II.
PASSAGE OF NEW MODEL RULE 8.4(g) IS OF PARAMOUNT IMPORTANCE
IN EFFECTING EQUALITY WITHIN THE LEGAL PROFESSION
Contrary to the undocumented assertion in “52 ABA Member Attorneys” comment that there
exists “no demonstrated need” for draft Model Rule 8.4(g), the legal profession’s longstanding
and, for many groups, worsening patterns of exclusion, harassment, bias, prejudice and other
discrimination are a harsh reality that the proposed Model Rule has the potential to go a
significant distance in reversing.
As headlined in the Washington Post in May 2015, “Law is the least diverse profession in the
nation. And lawyers aren’t doing enough to change that.” For, despite the indefatigable efforts
of a great many determined individuals and organizations, there has long existed an enormous
body of studies, law review articles, scholarly symposia and professional conferences across the
8
Model Code of Judicial Conduct Rule 2.3’s Comment [2], as earlier discussed, contains possible such language, including
“negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of
connections between race, ethnicity or nationality [or socio-economic status] and crime; and irrelevant references to personal
characteristics….”
9
The Court clarified the that the application of that state’s prohibition expanded to cover activities related to professionallyrelated activities outside the courthouse, whether or not limited to litigation, such as “…treatment of other attorneys and their
staff; bar association and similar activities…”
5
nation 10 irrefutably establishing that the law continues to be a profoundly and, in many respects,
increasingly segregated profession.
A few of the bald numbers tell the tale: Eighty-eight percent of lawyers in the United States are
white and 65% are male, while only 2.34% of lawyers in 2015 NALP-reporting firms are openly
LGBTQ (with wide differences based on, e.g. geographic location and firm size) and partners
reporting a disability stand at barely one-third of one percent (.0033). Only 40% of NALPreporting offices reported at least one LGBT lawyer, while just 10% of all responding firms
reported having one or more lawyers with a disability. 11
As further demonstrated in substantially all these studies, among the primary factors driving the
continuing disproportionate entry into, and advancement in, the profession by women, people of
color, the LGBTQ community, and lawyers with disabilities, and the unequal access to justice
for these and other societally marginalized groups, is conduct driven by harassment, bias and
prejudice and other forms of discrimination, largely based on harmful stereotypes, with few, if
any, adverse consequences for attorneys engaging in such behavior.
10
Among the distinguished entities performing such studies have been the District of Columbia Bar, the New York City Bar, the
Bar Association of San Francisco, the State Bar of California, the Florida Bar, the Washington State Bar Association, the
Lawyers Club of San Diego, the Hispanic National Bar Association, the National Association of Women Lawyers (NAWL), the
Minority Corporate Counsel Association, the National Association for Law Placement (NALP), ALM, Catalyst, and, of course,
the ABA and the ABA Foundation. Many of these groups, including the Bar Association of San Francisco, NALP, NAWL and
the ABA, have produced multiple studies over the course of almost 30 years revealing a dismaying lack of progress in changing
the identified attitudes, conduct and outcomes. A small sampling of very recent studies includes, e.g., “Invisible Then Gone,
Minority Women Are Disappearing From BigLaw And Here’s Why,” ABA Journal, March, 2016, pp. 37-43, noting that 85% of
of minority female attorneys quit large firms within 7 years, and the discrimination implicated in this shameful phenomenon; and
a Florida YLD survey of young women lawyers, finding that nearly half of the respondents reported already having experienced
gender bias during their brief careers. The Florida Bar News, March 1, 2016.
11
Women: Increasingly well represented in the profession as a whole since the late 1970’s, women have nevertheless made
glacial progress in attaining leadership positions, languishing at approximately 17% of Big Law equity partners, at 7% of ALM100 firm chairs, earning 32% less in compensation than their large firm male counterparts, and remaining totally absent from
over 50% of the ALM 100 management committees. While continuing to occupy well over 40% of associate positions in large
firms, women’s representation among associates has fallen in all but one of the past six years, while they are substantially
overrepresented in “staff attorney” and “contract attorney” positions. As to minority women, according to a recent NALP press
release, women of color stand at 2.55% of partners in reporting firms, “a pattern that holds across all firm sizes and most
jurisdictions.”
Minorities: Although minorities have eked out some marginal gains in the last year, minority equity partners in large firms stand
at about 5.4%, approximately the same level as Bar Association of San Francisco Goal for 1995 (set in 1989), while AfricanAmericans lawyers today constitute only 3% of all Big Law attorneys, a percentage which is falling. (The number of AfricanAmerican associates in NALP-reporting firms has fallen in all but one of the past 6 years.) Hispanic attorneys comprise only
3.2% of all Big Law attorneys, while the Asian-American percentage stands at 6.3%. Native American numbers are rarely
reported at all because they are so small, but they are thought to represent less than one-half of one percent of all lawyers
nationwide.
The pipeline: The chances of remedies via “the pipeline” are not reassuring. Despite their huge influx into the profession
starting in the early 1970’s, women have never reached 50% of law school matriculants, and their percentage has dropped for all
but a few of the years since the 2002-03 entering class. Due in some substantial part to the attack on and subsequent steep decline
of affirmative action programs, the numbers and percentages of African-American, Mexican-American and Native American law
students has fallen precipitously since the 1995-96 enrolling class, and have never recovered. ABA statistics show that while the
percentage of minority law school students more than tripled between 1971 and 1996, from 6 to 20%, the percentage of all
minorities rose only 9% over the ensuing twenty years, with virtually all that growth attributable to non-Mexican-American
Hispanics and some Asian-American groups.
6
Though penned 25 years ago, Harvard Professor David Wilkins’ words are as relevant today as
they were when he wrote them. “Few would dispute that the campaign to end legal segregation
culminating in Brown v. Board of Education is the legal profession’s finest accomplishment—
just as the profession’s complicity in the regime that this campaign demolished was its darkest
hour. The fact that the country’s most prestigious law firms are nearly as segregated today as the
entire legal system was forty years ago stands as a constant rebuke to the profession’s attempt to
claim the noble side of this heritage…As the legal profession confronts the uncertainties of the
next millennium, it is the energy [of recent initiatives] that holds the best hope for charting a new
path that connects the profession’s future to the best of its past.”
Rule 8.4(g) is one such initiative, and a potentially powerful one.
Numerous studies have demonstrated that biased, prejudiced, discriminatory and/or harassing
misconduct can be prevented or ameliorated by so-called “bias-interrupters.” Subject to the
recommendations contained herein, and those of SOGI and other groups, new Rule 8.4 (g) can be
a particularly effective such “interrupter,” because it holds attorneys accountable for their
harassing, biased, prejudiced, or otherwise discriminatory conduct, by specifying and proscribing
such conduct and imposing consequences (discipline) for engaging in such conduct .
If lawyers know they will be called upon by the Bar to explain their discriminatory conduct, they
will have a strong incentive to attempt to be fair and nondiscriminatory -- by educating
themselves about the existence and injurious impact of bias in their own behavior, and by
changing their behavior accordingly. Attorney education is made all the easier in MCLE states
with required ethics and diversity units. Many attorneys may thereby be led to doubt or at least
become more skeptical about their own objectivity, whether it means rethinking and refraining
from making biased statements, or affirmatively employing strategies to both lessen the role of
bias in their own decision-making and that of their institutions, or, at a minimum, to consciously
avoid engaging in stereotyped or biased behavior in their professional lives. 12
III.
THE REQUIREMENT OF KNOWING DISCRIMINATION RISKS GUTTING
THE EFFECTIVE APPLICATION OF THE NEW RULE
As discussed above and at length in the SOGI Memorandum, proposed Rule 8.4(g)’s
requirement for knowing discrimination appears to set a prohibitively high standard that would
effectively defeat the Model Rule’s intent to prevent and, where appropriate, penalize
discriminatory conduct by lawyers. The “knowing” standard is the functional equivalent of that
required for proof of a criminal violation, and one which exceeds well-established standards
governing proof of civil violation of federal, state and local civil rights and nondiscrimination
laws and ordinances, which generally contain no such requirement. (We adopt by reference
SOGI’s discussion of this issue). The “knowing” requirement also runs counter to applicable
12
Experts such as UCLA Professor Jerry Kang and Amy Oppenheimer, for example, recommend strategies including: engaging
in education on this subject; spending time with and extending assistance to people from groups other than one’s own; allowing
more time to consider and then to justify decisions, and committing those decisions to writing; creating and consistently utilizing
previously agreed-upon, clear merit criteria and processes; and questioning assumptions in making individual decisions and
thinking through alternative hypotheses.
7
Judicial Code provisions, setting up the kind of double standard discussed in the SOGI
memorandum regarding application of different standards for litigators and non-litigators, and is
contained in neither the ABA Criminal Justice Standards nor the rules of 19 of the 23
jurisdictions that have adopted anti-bias, prejudice, harassment and/or discrimination provisions.
Should SCEPR ultimately believe it advisable to include some form of scienter or negligence
standard, we suggest that it adopt Washington State’s formulation barring a lawyer from
engaging in conduct “that a reasonable person would interpret as manifesting prejudice or bias,”
or the New Jersey Code’s language, prohibiting conduct involving discrimination “…where the
conduct is intended or likely to cause harm.” Finally, a third, but more restrictive alternative that
we do not recommend but would call to the Committee attention, is Missouri’s “know or should
have known” standard.
IV.
CONCLUSION
SCLAID, CRSJ and ERA again commend SCEPR for the time and effort it has devoted to
drafting a Model Rule to effectively address attorney conduct which constitutes harassment or is
otherwise discriminatory in nature. Subject to the above commentary, we believe House passage
of the black letter Model Rule 8.4(g) and amended Comment [3] have the potential to materially
reverse the seemingly intractable patterns of harassment, bias, prejudice and other discrimination
which continue to plague our profession and to erode public confidence in our system of justice.
8
Rule 8.4: Misconduct (As amended August 2016)
Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) 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;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that
violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or
other law; or
(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 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.
Comment on Rule 8.4 (As amended August 2016)
Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct - 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
concerning action the client is legally 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] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal
profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias
or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or
physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other
unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and antiharassment statutes and case law may guide application of paragraph (g).
[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court
personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice;
and participating in bar association, business or social activities in connection with the practice of law. Lawyers may
engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example,
implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse
law student organizations.
[5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone
establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter
of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with
these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule
1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to
those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for
good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by
the lawyer of the client’s views or activities. See Rule 1.2(b).
[6] 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.
[7] 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.
Comments on Proposed Rule of Professional Conduct 8.4.1
By Dean Emerita Drucilla Stender Ramey
[email protected]
To the Board of Trustees of the State Bar of California:
As the former Executive Director and General Counsel of the Bar Association of San Francisco
and of the National Association of Women Judges, )and Dean Emerita of Golden Gate University
School of Law (where I also taught Professional Responsibility), I write to briefly comment with
respect to the “unlawful” requirement contained in both drafts of proposed Rule of
Professional Conduct 8.4.1—ALT1, the version proposed by the Commission for the Revision of
the Rules of Professional Conduct (“Commission”) and ALT2, the version provided by State Bar
staff at the request of the Board of Trustees.
Preliminarily, I want to commend the Commission on the overall body of its work, including the
broadening of proposed Rule 8.4.1 (in both versions) to cover conduct by an attorney in the
course of client representation (although I would hope that the newly expanded California Rule
will be further amended to reflect the new ABA Model Rule’s more inclusive ambit of “conduct
related to the practice of law.”) The entire body of proposed amendments, and the proposed
reorganization of the Rules to generally conform with the format of the ABA Model Rules go a
long way toward remedying the current non-conforming format and many of the most
problematical provisions of the current California Rules.
I write, however, to strongly oppose the inclusion of the requirement of unlawfulness
contained in both proposed versions of Rule 8.4.1 relating to “Discrimination, Harassment and
Retaliation.” Inclusion of this requirement runs counter to the Rules’ stated purpose of
sanctioning conduct that serves to “undermine confidence in the legal profession” and that is
“contrary to the fundamental principle that all people are created equal.” The “unlawfulness”
requirement is also plainly inconsistent with both the spirit and the letter of the applicable
provisions of Rule 2.3(C) of the Model Code of Judicial Conduct and with the newly adopted
ABA Model Rule 8.4(g) 1 and the corresponding rules of the vast majority of the 23 states which
have adopted antidiscrimination rules. In contrast to these formulations, the currently proposed
inclusion of a requirement of unlawfulness,so seriously delimits the Rule’s practical application
as to vitiate its own purported purpose, effectively gutting whatever effectiveness it might have
1
Model Rule 8.4(g) adopted in August, 2016 by the ABA House of Delegates reads, in relevant part:
“It is professional misconduct for a lawyer 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 identify, 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. “
1
had in remedying our profession’s extraordinarily high levels of attorney harassment and other
discrimination plaguing our profession.2
The Board’s request that ALT2 be provided is particularly troubling, as the requirement of prior
adjudication, finding of violation by, and entry of an order against an attorney in discrimination
cases will clearly have no result other than to effectively render the purported ethical
proscription null and void. However, ALT!’s continuing inclusion of the requirement that the
conduct in question be “unlawful” will, I believe, come perilously close to resulting in the same
dismal outcome—few, if any, ethical complaints by victims, little or no achievement of the
2
The legal profession’s longstanding and, for many groups, worsening patterns of exclusion, harassment, bias, prejudice and
other discrimination are a harsh reality that an effective California Rule has the potential to reverse. As headlined in the
Washington Post in May 2015, “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change
that.” For, despite the indefatigable efforts of a great many determined individuals and organizations, there has long existed an
enormous body of studies, law review articles, scholarly symposia and professional conferences across the nation irrefutably
establishing that the law continues to be a profoundly and, in many respects, increasingly segregated profession.
Eighty-eight percent of lawyers in the United States are white and 65% are male, while only 2.34% of lawyers in 2015 NALPreporting firms are openly LGBTQ (with wide differences based on, e.g. geographic location and firm size) and partners
reporting a disability stand at barely one-third of one percent (.0033).
As further demonstrated in substantially all the dozens of studies that have been produced, among the primary factors driving the
continuing disproportionate entry into, and advancement in, the profession by women, people of color, the LGBTQ community,
and lawyers with disabilities, and the unequal access to justice for these and other societally marginalized groups, is conduct
driven by harassment, bias and prejudice and other forms of discrimination and retaliation, largely based on harmful stereotypes,
with few, if any, adverse consequences for attorneys engaging in such behavior.
Women: Increasingly well represented in the profession as a whole since the late 1970’s, women have nevertheless made glacial
progress in attaining leadership positions, languishing at approximately 17% of Big Law equity partners and 7% of ALM-100
firm chairs, earning 32% less in compensation than their large firm male counterparts, and remaining totally absent from over
50% of the ALM 100 management committees. While continuing to occupy well over 40% of associate positions in large firms,
women’s representation among associates has fallen in all but one of the past six years, while they are substantially
overrepresented in “staff attorney” and “contract attorney” positions. As to minority women, according to a recent NALP press
release, women of color stand at 2.55% of partners in reporting firms, “a pattern that holds across all firm sizes and most
jurisdictions.”
Minorities: Although minorities have eked out some marginal gains in the last year, minority equity partners in large firms stand
at about 5.4%, approximately the same level as Bar Association of San Francisco Goal for 1995 (set in 1989), while AfricanAmericans lawyers today constitute only 3% of all Big Law attorneys, a percentage which is falling. (The number of AfricanAmerican associates in NALP-reporting firms has fallen in all but one of the past 6 years.) Hispanic attorneys comprise only
3.2% of all Big Law attorneys, while the Asian-American percentage stands at 6.3%. Native American numbers are rarely
reported at all because they are so small, but they are thought to represent less than one-half of one percent of all lawyers
nationwide.
The pipeline: The chances of remedies via “the pipeline” are not reassuring. Despite their huge influx into the profession
starting in the early 1970’s, women have never reached 50% of law school matriculants, and their percentage has dropped for all
but a few of the years since the 2002-03 entering class. Due in some substantial part to the attack on and subsequent steep decline
of affirmative action programs, the numbers and percentages of African-American, Mexican-American and Native American law
students has fallen precipitously since the 1995-96 enrolling class, and have never recovered. ABA statistics show that while the
percentage of minority law school students more than tripled between 1971 and 1996, from 6 to 20%, the percentage of all
minorities rose less than 7% over the ensuing twenty years, with virtually all that growth attributable to non-Mexican-American
Hispanics (largely Cuban Americans) and some Asian-American groups.
2
critically important goals of the Rule and, ultimately, no appreciable change in unacceptable
attorney conduct or in progress in desegregating the legal profession.
Thus, in requiring injured persons to engage in the prohibitively cumbersome and costly
process of conducting a “trial within a trial” before availing themselves of a remedy under Rule
8.4.1, ALT1 would deter the vast majority of injured people from undertaking this arduous
process to vindicate their purported ethical right to be free from discriminatory attorney
conduct.
Unlawfulness is not a required element for a finding of rule violation or imposition of discipline
for the vast majority of harmful attorney actions covered by the California Rules and those of
other jurisdictions. To the contrary, both the ABA Model Code and the California Rules make
clear that the legal profession’s privilege of self-governance, stemming from its fundamental
role in the system of justice, requires that attorneys be held to a higher standard. Why, then,
should discriminatory conduct -- arguably equally or more injurious to the victim and harmful to
the system of justice than, for example, engaging in a conflict of interest -- be treated in a
manner far more protective of lawyers’ misconduct?
Most lying, for example, is not unlawful, but lying by lawyers in representing a client is
uniformly deemed to be a disciplinary offense. Indeed, the conduct recently held in two recent
cases to richly justify the imposition of judicial sanctions, while constituting probable violations
of the new ABA Rule would almost certainly not be successfully pursued under the currently
proposed California Rule. In both cases, the jurists awarded sanctions against male lawyers for
conduct including sexist statements (“You’re not getting menopause, I hope” and “[D]on’t raise
your voice at me. It’s not becoming of a woman…”) directed toward female opposing counsel.
In quoting from a recent ABA landmark federal court study which established that women are
dramatically underrepresented among the ranks of lead counsel, Puerto Rico District Court Judge
Francisco Beso and former Northern California Magistrate Judge Paul S. Grewal both cited to
the report’s findings that, “inappropriate or stereotypical comments” directed at female attorneys
by opposing counsel were ‘“one of the causes of the marked underrepresentation of women in
lead trial attorney roles…When an attorney engages in discriminatory behavior, it reflects not
only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal
profession and disgraces our system of justice…”’ (Judge Beso), and such conduct is “…among
the more overt signifiers of the discrimination, both stated and implicit, that contributes to
[women’s] underrepresentation in the legal field.” (former Magistrate Judge Grewal) 3 Yer such
conduct would not result in discipline under either ALT1 or, most certainly, under ALT2.
3
Cruz-Aponte v. Caribbean Petroleum Corp, Case No. 09-cv-02092, 2015 WL 5006213 (U.S.D.C.-D.P.R., Aug.
17, 2015); Claypole v. County of Monterey, Case No. 14-cv-02730 (U.S.D.C.-N.D.Cal., Jan. 12, 2016). Judge Beso
additionally cites numerous cases imposing sanctions for attorneys’ reference to female opposing counsel as “babe,”
“bimbo,” ”crazy chicken,” “girl,”, “dear,” “hon,” “little girl,” “little lady,” and “little mouse.”
3
In conclusion, the carving out of harmful conduct which is discriminatory in nature so as to
provide much more limited response and deterrence by the legal discipline system than for
other misconduct, and for much narrower recourse for victims, who by definition are members
of groups historically mistreated by our own profession and the broader society, has no
reasonable justification. As officers of the court, lawyers are held to a higher standard than just
not being crooks or scofflaws. We stand at the gates of the legal system, charged with
upholding the rule of law, and ensuring equal justice under the law for all, and with preserving
the public trust in the justice system that ethical conduct engenders. Lawyers are held
accountable when they violate that trust, and , irrespective of whether or not they have
broken a law, they undeniably do violence to the profession’s commitment to equal justice and
fundamental fairness when they discriminate, harass or retaliate against members of protected
groups in the course of client representation.
I respectfully urge that the Board of Trustees reject the “unlawfulness” requirement as
currently contained in proposed Rule 8.4.1 .
4
Proposed Rule 8.4.1 [2-400] Prohibited Discrimination, Harassment and Retaliation (Commission’s
Proposed Rule Adopted on February 19 – 20, 2016 (“ALT1”)
(a) In representing a client, or in terminating or refusing to accept the representation of any client, a
lawyer shall not unlawfully harass or unlawfully discriminate against persons* on the basis of any
protected characteristic or for the purpose of retaliation.
(b) In relation to a law firm’s operations, a lawyer shall not, on the basis of any protected characteristic
or for the purpose of retaliation, unlawfully: (1) discriminate or knowingly* permit unlawful
discrimination; (2) 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 (3) 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.
(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) “retaliation” means to take
adverse action because a person* has (i) opposed, or (ii) pursued, participated in, or assisted any action
alleging, any conduct prohibited by 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 issuing a notice of a disciplinary charge under this Rule: (1) If the notice is of a disciplinary
charge under paragraph (a) of this Rule, the State Bar shall 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. (2) If the notice is of a disciplinary charge under paragraph (b) of this Rule, the State
Bar shall 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 prevent a lawyer from representing a client alleged to have engaged in unlawful
discrimination, harassment, or retaliation.
Comments
[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. 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. While both the parties and the court retain discretion to
refer such conduct to the State Bar, a court’s finding that preemptory challenges were exercised on a
discriminatory basis does not alone establish a violation of paragraph (a).
[3] 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* nonmanagement 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.
[4] 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.
[5] 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.
[6] 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.
Proposed California Rule 8.4.1 [2-400] Prohibited Discrimination, Harassment and Retaliation (Staff’s
Proposed Rule Drafted at the Direction of the Board (“ALT2”)
(a) In representing a client, or in terminating or refusing to accept the representation of any client, a
lawyer shall not unlawfully harass or unlawfully discriminate against persons* on the basis of any
protected characteristic or for the purpose of retaliation.
(b) In relation to a law firm’s operations, a lawyer shall not, on the basis of any protected characteristic
or for the purpose of retaliation, unlawfully:
(1) discriminate or knowingly* permit unlawful discrimination;
(2) 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
(3) 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.
(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) “retaliation” means to take adverse action because a person* has (i) opposed, or (ii) pursued,
participated in, or assisted any action alleging, any conduct prohibited by this Rule.
(d) No disciplinary investigation or proceeding may be initiated by the State Bar against a lawyer
under this Rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal,
shall have first:
(1) adjudicated a complaint of alleged harassment or discrimination and found that unlawful conduct
occurred; or
(2) has entered an order sanctioning a lawyer for such unlawful conduct.
Upon adjudication or entry of order, the tribunal’s finding, verdict or order shall then be admissible
evidence of the occurrence or non-occurrence of the harassment or discrimination alleged in any
disciplinary proceeding initiated under this Rule.
(e) This Rule shall not prevent a lawyer from representing a client alleged to have engaged in unlawful
discrimination, harassment, or retaliation.
Comments
[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. 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. While both the parties and the court retain discretion to
refer such conduct to the State Bar, a court’s finding that preemptory challenges were exercised on a
discriminatory basis does not alone establish a violation of paragraph (a).
[3] 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* nonmanagement 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.
[4] In order for harassment or 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.
[5] 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.
[6] 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.