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ABA to Beef up Ethics Rule on Workplace Discrimination

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By Jonathan R. Tung, Esq. on January 25, 2016 2:57 PM

A new proposal to amend the ABA rules of Professional Conduct is on the table. Its aim is to address workplace discrimination.

Not that you weren't being careful about what you said in the workplace before, but the proposed amendment will perhaps coax you into thinking twice before you make that off-color joke at the office's next in-office party.

Rule 8.4

Currently, Rule 8.4 of the ABA Rules of Professional Conduct makes discrimination and bias in the "course of representing a client" a form of "conduct prejudicial to the administration of justice." The handful of classes protected by the statement were included within the ambit of the rule thanks to a ABA comment that amended the rule in 1998.

Rule 8.4(g) Is More Expansive

The proposal is to not only expand the classes of protected persons, but to also make it clear that the prohibited discrimination goes up to the point of discrimination and bias "related to the practice of law."

With regards to the expansion of protected classes under proposed Rule 8.4(g), it will now be an ethical violation for a lawyer to knowingly discriminate or harass based on marital status, gender identify, or ethnicity.

Covering All the Bases

It should be noted that the proposed expansion is contained in Rule 8.4(g)'s comment, and not in the rule itself. The rules themselves are treated like black letter while the comments are usually regarded only as persuasive -- even though practitioners and experts routinely turn to the comments for interpretation and construction.

How important is the new proposal? It definitely should be taken seriously. Yes, there are many federal laws which provide means for aggrieved employees to sue employers (as well as state rules), but the ABA RPC provides some of the fastest means for an attorney to get suspended.

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