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Disciplinary Board Seeks Comments on Proposed Harassment and Discrimination Rule

The Disciplinary Board is seeking comments on a proposed addition to Rule 8.4 of the Rules of Professional Conduct, regarding lawyer misconduct. The proposal would add a new Subsection (g) to the Rule, addressing harassment and discrimination in the course of practice of law. The proposal is published at 49 Pa.B. 4941 (8/31/19).

The new Subsection (g) states in part:

It is professional misconduct for a lawyer to … in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.

This proposal is not unique to Pennsylvania. The American Bar Association adopted a slightly different proposed Rule 8.4(g) on August 8, 2016. The Supreme Courts of Maine and Vermont have adopted the rule, and at least 20 states have adopted some language with similar intent.

Some have expressed concern that ethics provisions regarding harassment or discrimination may intrude on protected speech if construed broadly. The text of the proposed rule states that the terms harassment and discrimination are “defined in applicable federal, state or local statutes or ordinances.” Comment (4) to the proposed rule adds that “the substantive law of antidiscrimination and anti-harassment statutes and case law guide application of paragraph (g) and clarify the scope of the prohibited conduct.”

Comment (3) specifies that “conduct in the practice of law” includes participation in activities that are required for a lawyer to practice law, such as continuing legal education activities.

The proposed rule also states that it does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. It also does not preclude advice or advocacy consistent with the Rules of Professional Conduct.

Interested persons may submit comments by mail to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, by facsimile to number (717-231-3381), or by email addressed to Comments received on or before September 30, 2019 will be considered.

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