D.C. Considers Rule Change On Harassment And Discrimination
The District of Columbia Court of Appeals seeks comments on a Bar Board of Governors proposed amendments to the Rules of Professional Conduct sent to the Court in April 2021.
The court notes that the substantial delay was due to an administrative oversight.
Proposed Rule 8.4(h) would prohibit conduct that a lawyer knows or reasonably should know constitutes harassment or discrimination based on protected categories directed at another person. The proposed rule would not limit a lawyer’s ability to accept, decline, or withdraw from a matter, or to provide legitimate advice or engage in legitimate advocacy; and the proposed rule leaves unchanged the existing D.C. Rule (Rule 3.4(g)) regarding peremptory challenges to jurors.
Further, the proposal leaves unchanged D.C. Rule 9.1, a rule that has existed in the District for 30 years without issue.
The Committee reached this final proposal after publishing for public comment in 2019 a proposal that would have essentially adopted ABA Model Rule 8.4(g) as a revised D.C. Rule 9.1. The Committee received 52 comments in response to its notice. These comments were largely critical of the 2019 proposed rule, principally, although not exclusively, on First Amendment grounds. Upon careful consideration of the issues identified in the comments, the Committee revised its proposal to the one we transmit to the Court today.
The D.C. Bar has a responsibility to lead the profession in promoting equal justice under law. This should include working to eliminate discrimination, harassment, and bias by lawyers — not just in the courtroom, but wherever their conduct relates to the practice of law. Lawyers who demonstrate bias and engage in discrimination in connection with the practice of law undermine and damage the profession, both by limiting opportunities for certain individuals to participate in the practice of law and by damaging the public’s perception of the profession.
Comments are due by January 13, 2025. (Mike Frisch)