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Supreme Court Amends Harassment Provisions of Rule 8.4

By order dated July 26, 2021, the Supreme Court of Pennsylvania approved an amendment to Rule 8.4 of the Rules of Professional Conduct, Misconduct.

The amendment revises the language of subdivision (g) of the rule, which addresses harassment or discrimination on the basis of several protected categories in the practice of law. Language prohibiting “knowingly manifest bias or prejudice” is struck out, along with language defining harassment or discrimination “as those terms are defined in applicable federal, state or local statutes or ordinances.”

Instead, the terms harassment and discrimination are defined in changes to the comments on the rule.

Comment [3] is amended to remove reference to “participation in activities that are required for a lawyer to practice law,” and substitutes a list of activities considered within the practice of law. Those activities are:

(1) interacting with witnesses, coworkers, court personnel, lawyers, or others, while appearing in proceedings before a tribunal or in connection with the representation of a client;

(2) operating or managing a law firm or law practice; or

(3) participation in judicial boards, conferences, or committees; continuing legal education seminars; bench bar conferences; and bar association activities where legal education credits are offered.

Certain activities are excluded from the reach of the rule, including speeches, communications, debates, presentations, or publications given or published outside the context established in the comments.

Existing Comment [4], tying the prohibitions to “substantive law of antidiscrimination and anti-harassment statutes and case law,” is deleted.

A new Comment [4] defines harassment as “conduct that is intended to intimidate, denigrate or show hostility or aversion toward a person on any of the bases listed in paragraph (g).” Harassment specifically includes sexual harassment, and examples of conduct constituting sexual harassment are set forth.

New Comment [5] defines “discrimination” as:

Conduct that a lawyer knows manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in listed in paragraph (g); to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics.

The amendment is effective in thirty (30) days, on August 25, 2021.

Justice Mundy filed a dissent to the order adopting the rule, stating that “the proposed amendments fail to cure the Rule’s unconstitutional nature as articulated by Judge Kenney in Greenberg v. Haggerty, 491 F.Supp.3d 12 (E.D. Pa. 2020).”

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