Mediation Message No. 149

NEW RULE OF PROFESSIONAL CONDUCT PROHIBITING DISCRIMINATION, HARASSMENT AND RETALIATION

Former rule 2-400: California’s new Rules of Professional Conduct, which went into effect on November 1, 2018, include rule 8.4.1, which is the revision of former rule 2-400, which prohibited discrimination, or the knowing permission of, on the basis of race, national origin, sex, sexual orientation, religion, age or disability “in the management or operation of a law practice.” That law practice included the hiring, promoting and discharging functions as well as the acceptance and termination of clients. Under 2-400, a discipline investigation or proceeding could not be initiated unless a non-discipline tribunal of competent jurisdiction had first found that unlawful discrimination had occurred and that such finding was final. Rule 8.4.1 has made the following changes:

Protected characteristics are expanded: In addition to the above protected characteristics in former rule 2-400, rule 8.4.1, par. (c)(1) adds creed, color, ancestry, physical and mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression and military and veteran status.

Harassment of and retaliation against clients are now prohibited: Rule 8.4.1, par. (a) prohibits both harassment of clients “on the basis of a protected characteristic” and unlawful retaliation against clients in addition to the previous prohibition against their being discriminated against. Comment no. 2 to this rule notes that the conduct prohibited by paragraph (a) includes the conduct of a lawyer before a judicial officer but does not include a court’s finding that peremptory challenges were exercised on a discriminatory basis. Comment no. 3 provides that a lawyer does not violate this rule by “restricting who will be accepted as clients for advocacy-based reasons, as required or permitted by these rules or other law.”

Harassment of and retaliation against a law firm’s employees of all types are now prohibited: As to a law firm’s operations, rule 8.4.1, par. (b) provides that a lawyer shall not unlawfully discriminate or knowingly permit discrimination; shall not harass or knowingly permit harassment of employees, applicants, unpaid interns, volunteers or persons providing services under a contract; shall not refuse to hire or employ or select anyone for a training program; shall not discharge any person or discriminate as to compensation or terms of employment and shall not unlawfully retaliate against any employee.

“Knowingly permit” definition essentially remains the same as in 2-400: Rule 8.4.1, par. (c)(2) defines “knowingly permit” as “to fail to advocate corrective action where the lawyer knows of a discriminatory policy or practice that results in the unlawful discrimination or harassment prohibited [in a law firm’s operations].”  Comment no. 5 to this rule states that “What constitutes a failure to advocate corrective action … will depend on the nature and seriousness of the discriminatory policy or practice, the extent to which the lawyer knows of the unlawful discrimination or harassment resulting from that policy or practice, and the nature of the lawyer’s relationship to the lawyer or law firm implementing that policy or practice.”

The applicable law for determining “unlawful” and “unlawfully”: Applicable state and federal statutes and decisional law shall be used in determining whether unlawful discrimination or harassment have occurred under rule 8.4.1. (See par. (c)(3).)  “Retaliate,” on the other hand, is not determined by existing state and federal law. Instead, it is defined in 8.4.1, par. (c)(4) as “tak[ing] adverse action against a person because that person has (i) opposed, or (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by” the language in 8.4.1 as to clients and employees of all kinds.

A lawyer’s notice requirements for a violation of rule 8.4.1: Any lawyer who is being investigated or prosecuted by the State Bar for discrimination, harassment or retaliation shall notify the State Bar of any related, in whole or in part, criminal, civil or administrative actions. The lawyer shall also provide the State Department of Fair Housing (DFEH) and the U.S. DOJ of any notice of discipline charge as to prohibited harassment, discrimination or retaliation against a client. The lawyer shall notify the DFEH and the EEOC of any notice of discipline charge as to prohibited harassment, discrimination or retaliation against an employee, applicant, unpaid intern or person providing services under a contract. (See par. (e).) Comment no. 6 to this rule explains that the purpose of the notice requirement ensures that the State Bar and the State Bar Court have information to determine whether a State Bar Court proceeding relative to a violation should be abated.

Rule 8.4.1 deletes the former requirement in rule 2-400 that a competent tribunal must first find unlawful conduct before a State Bar investigation or proceeding can be initiated.

MDM’s observation: The expanded scope of the prohibition against unlawful discrimination, the inclusion of prohibited unlawful harassment and retaliation by lawyers in the practice of law and the broad definition of “knowingly permit,” which includes the possible disciplining of a lawyer who “knowingly permits” discrimination or harassment by another lawyer or law firm employee reflect the current attitude that such conduct is unacceptable wherever it takes place in our society. It is also expected that the State Bar shall aggressively prosecute such misconduct.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, March 2018

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