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Illinois to Consider New ABA Model Rule 8.4g

Currently, Illinois Rule of Professional Conduct 8.4 (Misconduct) states that it “is professional misconduct for a lawyer to:

(j) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer’s professional activities. No charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.”

This Rule was adopted at a time when the ABA Model Rules had no specific rule that addressed discriminatory behavior on the part of a lawyer. Rather, as stated in Report 109 of the ABA Standing Committee on Ethics and Professional Responsibility (dated August 2016), the issue was addressed in “Comment [3] to Model Rule of Professional Conduct 8.4, Misconduct which explains that certain conduct may be considered “conduct prejudicial to the administration of justice,” in violation of paragraph (d) to Rule 8.4, including when a lawyer knowingly manifests, by words or conduct, bias or prejudice against certain groups of persons, while in the course of representing a client but only when those words or conduct are also “prejudicial to the administration of justice.”

After extensive preliminary discussions followed by formal debate, the ABA House of Delegates recently adopted an amendment to Rule 8.4 that specifically states that “it is 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 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 3 to the Rule states: “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 anti-harassment statutes and case law may guide application of paragraph (g).”

It takes only a cursory reading of the Model Rule to see how it broadens the definition of misconduct over that in the current Illinois Rule.

The amendment has come before the Illinois Supreme Court for adoption. It generated much debate within the ABA before its final adoption. There are arguments both for and against adoption of the Rule, and reasonable people can have differing opinions. However, the debate within the ABA indicates that the amendment was generated because of a real need, and I believe it should be adopted in due course.