Rule Making Harassment & Discrimination Unethical to go out for Comment

Update: In August, I reported that the ABA had amended Rule 8.4(g) of the Model Rules of Professional Conduct.  As amended, the rule makes it unethical to engage in harassment or discrimination in the practice of law.  My blog post is HERE.

In the post, I included a survey asking whether Vermont should follow the ABA’s lead and amend its version of Rule 8.4(g). The results:

  • Yes.   53%
  • No.   42%
  • I need more info.  5%

Last week, the Vermont Supreme Court’s Civil Rules Committee reviewed Model Rule 8.4(g) and, with some tweaks, voted to amend V.R.Pr.C. to track the ABA rule.  The proposed amendment will soon go out for notice & comment. I don’t know when and I have not yet seen the version that will go out for comment.

At the ABA level, the fight to amend Rule 8.4(g) drew a lot of attention and debate.  An excerpt from my blog is re-printed below.  If this issue interests you, stay tuned to the Court’s next memo to the bar for notice of the proposed amendment.

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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 underlined, deletions 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.

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One thought on “Rule Making Harassment & Discrimination Unethical to go out for Comment

  1. I’m not crazy about it. Private discrimination is already illegal and I don’t like pre-speech constraints. Finally, the term “harassment” has no legal meaning. It can mean whatever someone trying to enforce the term wants it to mean.

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