Harassment & Discrimination

Rule 8.4(g) of the Vermont Rules of Professional Conduct makes it professional misconduct for a lawyer to:

“(g) discriminate against any individual based on his or her race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth or age, or against a qualified handicapped individual in hiring, promoting, or otherwise determining the conditions of employment of that individual.”

Vermont’s rules are based on the ABA Model Rules of Professional Conduct.  Yesterday, the ABA House of Delegates approved Resolution 109.   The resolution amends proposed ABA Model Rule 8.4(g) as follows: (insertions underlineddeletions struck through)

“It is professional misconduct for a lawyer to

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate 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 Rule 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 prohibit legitimate advice or advocacy consistent with these rules.”

A recap of the debate is HERE.  The Report from various commissions and committees that advocated for the resolution is HERE.

I’m curious: should Vermont amend its Rule 8.4(g) to bring it into line with the ABA version?

Let me know by trying THIS POLL.

(note: my membership level does not allow me to view IP addresses or email address of people who take the poll. You’ll be anonymous.)

Now, here’s  a funny story.

Myles Lynk is a professor of law at Arizona State University’s Sandra Day O’Connor College of Law.  He is also the Chair of the ABA’s Standing Committee on Ethics and Professional Responsibility, as well as an at-large member of the House of Delegates.  Last week, Professor Lynk sent an email to each member of the House of Delegates urging that support for Resolution 109.  Bob Paolini, one of the the VBA’s reps to the House of Delegates, forwarded the email to me, asking for my input as bar counsel.

What’s so funny about that?  Bear with me.

I grew up in South Burlington, but attended George Washington University Law School. I wasn’t the best student (but, in my defense, only 1 student in each class is). I often sat in the back, as likely to be reading the USA Today sports section as a text book.

One day, second semester of my 1L term, I was sitting in class. I think it was Civil Procedure II, but I’m not positive. The professor that semester was a “visiting professor.” Per usual, I was in the back row. Per the unusual, I was prepared. I had thoroughly briefed and outlined the two cases assigned for that day.

Lo’ and behold the professor called on “Mr. Kennedy” and asked me to outline Case 1. I happily launched into a detailed recitation of the facts.

Sailing along smoothly, I was struck by a broadside. The professor cut me off, saying dismissively  “Mr. Kennedy, don’t come to class unless you’ve read the cases.”  He then moved on to another student.

I was stunned.  As the other student proudly prattled on, I stared at my notes, wondering where I’d gone wrong. Suddenly I realized my mistake: I’d read from the wrong outline! Asked to brief Case 1, I’d briefed Case 2. No problem! Just a slight mix-up. I’ll raise my hand and read from the proper outline.

The professor had none of it. He wouldn’t even acknowledge me. Finally, I stood up, yelled from the back that he wasn’t being fair, that I’d made a simple mistake, and that I was ready to discuss Case 1.  He barely looked at me.  99 of my mates in Section 14 of the Class of 1993 did.  Then, I walked out.

A few days later, I stopped to see the visiting professor in his office. I apologized.  He graciously accepted and we actually had a good laugh over the incident. Once the semester ended, I never saw or heard from (or about) the visiting professor again.

Until last week, when Bob Paolini forwarded to me the email from Myles Lynk, Chair of the ABA Standing Committee on Ethics and Professional Responsibility.

Myles Lynk was the visiting professor who called on me that day.

Rest assured, I’m going to send him an e-mail telling him how our paths recently crossed again.




3 thoughts on “Harassment & Discrimination

  1. There’s humor in it, but the story is hair-raising. I wonder, what was learned that day in class, and from what example? Good for you for having a good laugh afterward.


  2. Good story and impressive the way you forced the teacher to acknowledge your status. Most law-1 students are docile, tense and subordinate. Guess they never read the Declaration of Independence. The affect of my first year class made me feel it had either gone on something, en masse, or gone off something.

    With respect to the harassment rule; I don’t like it until they assign an objective standard and meaning to “harassment”. The proposed draft doesn’t address the problem with a statute which personalizes meaning and subsequently, enforcement. Anyone with an agenda or talent for being offended and a group which confirms it will refer to a rule like this. As I mentioned in my email to you it’s present state reminds me of state “frivolous filer” statutes which are uniformly unable to describe an objective standard to remove or restrict an litigants Constitutional right of access to courts and freedom of speech.

    Better to dispense with the rule until they can draft a better articulation of rights. I’m available, but they never call me.

    Bob Grundstein


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