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Why Do Lawyers Hate the ABA's Proposed Anti-Discrimination Rule?

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By Casey C. Sullivan, Esq. on May 11, 2016 11:09 AM

The American Bar Association is currently considering amending the Model Rules on attorney misconduct to make "discrimination and harassment" a professionally punishable offense. That's great, right? After all, pretty much no one is for discrimination and harassment.

Except the wording of the proposed amendment has many attorneys up in arms -- particularly over the inclusion of on "socioeconomic status." Here's why.

Banning Discrimination Based on ... Socioeconomic Status?

The proposed rule change would amend the ABA's Model Rule of Professional Conduct 8.4, which covers attorney misconduct, to make it professional misconduct for a lawyer to:

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.

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.

The addition does not limit an attorney's ability to "accept, decline, or withdraw from representation," doesn't prohibit diversity initiatives, and isn't meant to stop "legitimate advocacy" on behalf of clients.

But the inclusion of "socioeconomic status" has some attorneys riled. Would hiring only Ivy League grads count as discrimination based on socioeconomic status? What about only interviewing lateral hires from top law firms? Under the revised Rule 8.4, would that New York lawyer who banned grads from top law schools still be able to hire street-smart J.D.s only?

Lawyers React

UCLA Law professor Eugene Volokh pointed out some of the complications a ban on socioeconomic status could cause. As he writes in the Volokh conspiracy:

I can't imagine, of course, that the drafters were indeed intending to ban law firms from preferring employees with higher-status educations or past employment history, or from preferring wealthier partners, or from giving a break to poorer would-be employees or clients. But that's what the prohibition seems to cover.

It doesn't help that the term "socioeconomic status" is left undefined in the proposed changes.

Still, despite the concerns, most attorneys have reacted positively to the proposed changes. The Wall Street Journal has a gathered a collection of attorney responses. Arnold & Porter partner Robert Weiner's reaction seems somewhat representative: "when lawyers discriminate, it undermines not only our own credibility but the credibility of the system itself."

How do you feel about the ABA's proposed misconduct changes?
They're great!
Fine, except for socioeconomic status.
Not need.

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