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States split on new ABA Model Rule limiting harassing or discriminatory conduct (Excerpt from ABA Jo

States have been divided on whether to adopt new ABA Model Rule 8.4(g), which prohibits lawyers from engaging in harassing or discriminatory conduct. The Vermont Supreme Court has adopted the rule, while the South Carolina Supreme Court has rejected it. The Nevada and Utah supreme courts solicited public comments on the rule through July.

The ABA House of Delegates adopted Rule 8.4(g) in August 2016 at the ABA Annual Meeting. The rule was designed in part to prohibit discriminatory harassment not only in the practice of law but also at bar association meetings and other social functions. Comment 4 to the rule explains that “conduct related to the practice of law” includes not just representing clients and courtroom activity but also “participating in bar association, business or social activities in connection with the practice of law.” An ABA report noted evidence of sexual harassment at “activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm or in connection with their practice of law.”

“There are enough incidents of sexual harassment that make it important for the profession to have largely what is a symbolic statement,” notes Stanford University law professor and ethics expert Deborah L. Rhode.

Supporters say that the rule is necessary to enforce anti-discrimination principles, and that lawyers—as officers of the court—should be held to higher standards. Opponents contend it imposes an unconstitutional speech restraint on lawyers and extends too far beyond the traditional definition of the practice of law.

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