Disciplinary Board Proposes Anti-discrimination Rule: Comments Due 2/3/17

In a Notice of Proposed Rulemaking published December 3, 2016, at 46 Pa.B. 7519, the Disciplinary Board has proposed an amendment to Rule 8.4 of the Rules of Professional Conduct (Misconduct), adding a new subsection (g), which would make it professional misconduct and grounds for discipline for a lawyer to violate a federal, state or local antidiscrimination statute or ordinance. The Board has set a comment period running through February 3, 2017.

The full text of the proposed amendment adds the following language to the misconduct rule:

It is professional misconduct for a lawyer to …

(g) violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer's professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.

A few points about the proposed language:

  • The rule does not create strict liability for any violation of an antidiscrimination provision. The language of the proposed rule also requires that the action reflect adversely on a lawyer’s fitness as a lawyer.
  • The language lists a number of criteria that bear on the question of whether the conduct reflects adversely. Factors that enter into the determination include:
    • the seriousness of the act;
    • whether the lawyer knew that the act was prohibited by statute or ordinance;
    • whether the act was part of a pattern of prohibited conduct; and
    • whether the act was committed in connection with the lawyer's professional activities.
  • Where an administrative or judicial forum exists which has the power to adjudicate whether the conduct constitutes an illegal act of discrimination, a finding in that forum that discriminatory acts occurred, and completion of all administrative and judicial review necessary for the decision to be final, are prerequisites to disciplinary action.

The proposed rule differs from Rule 8.4(g) of the ABA Model Rules of Professional Conduct in its requirement of an adjudication of illegal conduct. The ABA rule forbids a lawyer to “(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Under the ABA rule, the disciplinary agency itself makes the determination of whether the lawyer committed discriminatory conduct. Under the Pennsylvania proposal, that conduct must violate an applicable law, and if there is a forum to make the determination of whether the lawyer committed a violation, that process must take place first. Also, the Pennsylvania rule requires that the conduct adversely reflect on fitness, which is not true of the ABA rule.

The Disciplinary Board will consider all comments submitted by members of the public. Send comments to:

Office of the Secretary
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Facsimile number (717-231-3382)
Email address Dboard.comments@pacourts.us

The Disciplinary Board is also seeking comments on a proposal published at 46 Pa.B. 7520 on December 3, 2016, making small changes relating to the taxation of expenses in disciplinary proceedings. Comments are due January 2, 2017. 

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