PHILADELPHIA BAR ASSOCIATION RESOLUTION SUPPORTING ADOPTION BY THE PENNSYLVANIA SUPREME COURT OF THE AMENDMENT TO ABA MODEL RULE 8.4

WHEREAS the Philadelphia Bar Association passed a resolution on February 27, 1997 urging adoption of revised comment to Model Rule of Professional Responsibility Rule 8.4 (d) adding comment 2 making it a violation of that rule if a lawyer "knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status," when such actions are prejudicial to the administration of justice; and

WHEREAS, the American Bar Association has long recognized its responsibility to represent the legal profession and promote the public's interest in equal justice for all. Since 1983, when the Model Rules of Professional Conduct ("Model Rules") were first adopted by the Association, they have been an invaluable tool through which the Association has met these dual responsibilities and led the way toward a more just, diverse and fair legal system; and

WHEREAS, lawyers, judges, law students and the public across the country and around the world look to the ABA for this leadership; and

WHEREAS, since 1983, the American Bar Association also has spearheaded other efforts to promote diversity and fairness; and

WHEREAS, in 2008 the ABA reformulated its objectives into four major "Goals" that were adopted by the House of Delegates; and

WHEREAS, Goal III is entitled, "Eliminate Bias and Enhance Diversity" and it includes the following two objectives: 1. Promote full and equal participation in the association, our profession, and the justice system by all persons. 2. Eliminate bias in the legal profession and the justice system; and

WHEREAS, in February 1998, the Criminal Justice Section and the Standing Committee on Ethics and Professional Responsibility (SCEPR) of the American Bar Association developed separate proposals to add a new anti-discrimination provision into the ABA Model Rules; and

WHEREAS, these proposals were then combined into Comment [3] to Model Rule 8.4, which was adopted by the House of Delegates at the American Bar Association's Annual Meeting in August 1998; and

WHEREAS, Comments are not Rules and they have no authority as such in that authority is found only in the language of the Rules and the Comments are intended as guides to interpretation, but the text of each Rule is authoritative; and

WHEREAS, the American Bar Association House of Delegates resoundingly passed Resolution 109 at its meeting on August 8, 2016, which provides as follows:

"RESOLVED, That the American Bar Association amends Rule 8.4 and Comment of the ABA Model Rules of Professional Conduct as follows:

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

  1. 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."

WHEREAS, the Comments provided to ABA Model Rule 8.4 provide as follows, as they pertain to the amendment:

  1. 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).
  2. 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. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.
  3. A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer's practice or by limiting the lawyer's practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer's representation of a client does not constitute an endorsement by the lawyer of the client's views or activities. See Rule 1.2(b).

WHEREAS, the Philadelphia Bar Association has communicated that diversity and inclusion are core values of the Philadelphia Bar Association; and

WHEREAS, reflecting its steadfast commitment to the achievement of diversity and inclusion, the Philadelphia Bar Association has developed a Diversity and Inclusion Action Plan to set forth goals, metrics and reporting mechanisms to ensure the Association fulfills its commitment to advancing diversity and inclusion in the legal profession; and

WHEREAS, the Philadelphia Bar Association has expressed its support of the diversity mission stated in Goal III of the ABA and its inclusion in this Association's Statement of Diversity Principles.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Supreme Court of Pennsylvania to adopt the amendment to Rule 8.4 of the ABA Model Rules of Professional Conduct which adds section (g) making it an ethical violation to 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.

AND BE IT FURTHER RESOLVED that the Chancellor and/or the Chancellor's designee(s) shall communicate its position to the Supreme Court of Pennsylvania, the legal profession and the public and take such other action as may be necessary to effectuate this Resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: October 26, 2016