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By: Paige Pembrook
The newly revised California Rules of Professional Conduct for attorneys, set to take effect November 1, 2018, include a tougher approach to discrimination, harassment, and retaliation in legal practice that exposes attorneys to State Bar discipline even where there has been no prior court determination of any wrongful conduct. The new rule is part of a national trend prohibiting discrimination as attorney misconduct.
Current Rule 2-400 that applies through October 2018 prohibits discrimination and harassment in connection with the management or operation of a law practice. Once a court determines that an attorney has committed unlawful discrimination and/or harassment, the State Bar can investigate and impose discipline. Given that no discipline appears to have been imposed under the current rule in the thirty years since its enactment in 1989, the new rule has teeth to allow for greater enforcement.
New Rule 8.4.1 replaces and fundamentally changes the current rule to expand attorneys’ exposure to State Bar discipline for discriminatory conduct. First, Rule 8.4.1 expands the scope of wrongful conduct to explicitly prohibit retaliation as well as discrimination and harassment. Second, Rule 8.4.1 prohibits all such conduct in connection with the representation of a client, the termination or refusal to accept the representation of any client, and law firm operations, whereas the current rule only prohibits conduct in connection with the management or operation of a law practice. Finally, Rule 8.4.1 eliminates the current requirement that there be a prior adjudication by a court that unlawful discrimination occurred before the State Bar can commence an investigation or impose discipline on an attorney for such discrimination.
The elimination of the requirement of a court adjudication of wrongdoing prior to State Bar investigation and discipline is the most drastic and contested change in the rule. Essentially, the State Bar Court becomes a forum of first resort for alleged victims of discriminatory, harassing, or retaliatory conduct by attorneys, despite the State Bar Court having limited resources and due process protections. Concern over the elimination of the prior adjudication requirement led to a new self-reporting requirement for attorneys who receive notice of disciplinary charges for violating Rule 8.4.1. It requires such attorneys to provide the disciplinary charges to the California Department of Fair Employment and Housing, the U.S. Department of Justice, or the U.S. Equal Employment Opportunity Commission, allowing the agencies to become involved and institute parallel administrative or judicial proceedings stemming from the same conduct. Attorneys must also report such parallel proceedings to the State Bar, allowing it to step aside so that the appropriate court or agency can adjudicate the matter.
In sum, the new rule is harsh. The comments to the new rule make clear that it permits the imposition of discipline for conduct that would not necessarily result in an award or remedy in a civil proceeding. Any person (including but not limited to prospective, former, and current employees, clients, and opposing counsel) can file complaints alleging discrimination with the State Bar that trigger investigations and discipline up to and including disbarment. Disciplinary charges may also trigger reporting requirements to government agencies that may lead to further investigations and proceedings. Discipline for misconduct can also serve as evidence in a legal malpractice claim, demonstrating that an attorney fell below the standard of care. For example, if an attorney’s harassment of a firm employee resulted in that employee missing critical deadlines that impacted the outcome of a client’s matter, State Bar discipline based on that harassment may be evidence in a malpractice action against the attorney.
Although California has had a rule prohibiting discrimination since 1989, the reinforced new Rule 8.4.1 is part of a national trend prohibiting discrimination in the practice of law. In 2016, the ABA approved Model Rule 8.4(g) that makes it professional misconduct to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination. Twenty states already have provisions in their attorney conduct rules addressing the subject of Model Rule 8.4 in some manner or adopting a version of Model Rule 8.4, including Colorado, Florida, Indiana, Ohio, New Jersey, New York, Michigan, Minnesota, Vermont, and the District of Columbia, to name a few.
California’s new Rule 8.4.1 is one of the strongest prohibitions and goes far beyond the ABA’s Model Rule 8.4 in policing discriminatory misconduct by attorneys. However, other states are likely to follow the ABA and California’s lead in increasing the State Bar’s powers to discipline attorneys for discrimination, retaliation, and harassment. Accordingly, all attorneys should be wary that conduct that was previously considered a professional discourtesy may be actionable misconduct that will lead to discipline, and any resulting discipline may provide evidence of attorney malpractice.
If you have any questions or would like more information, please contact Paige Pembrook at [email protected].