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 Abstract

Excerpted From: Wendy N. Hess, Promoting Civility by Addressing Discrimination and Harassment: The Case for Rule 8.4(g) in South Dakota, 65 South Dakota Law Review 233 (2020) (365 Footnotes) (Full Document)

In August 2016, the American Bar Association (“ABA”) passed a resolution to add a new subsection to the attorney misconduct model rule of professional responsibility (Model Rule 8.4) to explicitly prohibit attorneys from engaging in discrimination and harassment based on various protected statuses, including race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. According to the ABA, the subsection was necessary because “[d]iscrimination and harassment by lawyers ... undermines confidence in the legal profession and the legal system.” The South Dakota State Bar adopted a modified version of Rule 8.4(g) at its 2019 annual business meeting, subject to approval by the South Dakota Supreme Court.

Rule 8.4(g) serves both aspirational and concrete aims. It is aspirational because it demonstrates the legal profession's commitment to treating others-- such as clients, litigants, opposing counsel, judges, law firm employees, and law students--with dignity and respect. It demonstrates to the public that the legal profession will not tolerate unfair and abusive treatment, particularly when that conduct targets a person's racial, religious, gender, or other status.

The rule also serves a practical function to effectively address the problem of attorney harassment and discrimination when it occurs. Before Model Rule 8.4(g), the ABA's Rules of Professional Conduct did not have a rule that addressed this type of misconduct. The only applicable provision before 2016 was a comment to the general misconduct rule which prohibited attorney conduct that was prejudicial to the administration of justice--Model Rule 8.4(d). South Dakota, a model rule state, also only has a comment. Comments lack the authority of rules, and are therefore less effective tools to respond to misconduct. The other attorney ethics rules also were not well-suited to address attorney harassment and discrimination. For example, Model Rule 1.1(j), which forbids a lawyer from having sexual relations with a client, does not address a lawyer's sexual propositions or sexual remarks to a client.

On the surface, it might seem that a rule prohibiting attorney harassment and discrimination would be uncontroversial. Certainly, no attorneys are advocating in favor of harassment and discrimination. Yet, ABA Model Rule 8.4(g) has encountered some criticism, generally relating to concerns that it will impinge attorneys' free speech rights. This article discusses the ways in which the South Dakota proposed rule 8.4(g) provisions side-step the most significant criticisms lodged against the ABA Model Rule 8.4(g).

The conversation around Model Rule 8.4(g) highlights tensions between free speech and other competing principles such as civility, equality, and freedom from oppression and harassment. This article strives to address the issue from an apolitical perspective--civility in the legal profession. The South Dakota legal profession is deeply rooted in provisions requiring attorneys to be civil and courteous. Although this article addresses the South Dakota rule specifically, its examination of the rule through the lens of the legal profession's commitment to civility adds a new perspective to the discussion about adopting Model Rule 8.4(g). This article's emphasis on civility in no way means to describe harassment and discrimination as merely uncivil behavior. But harassment and discrimination certainly are at least uncivil.

The article addresses the need for Rule 8.4(g) in Part I, which examines relevant data and examples of harassment and discrimination by attorneys. Part II of the article provides a brief history of the ABA's adoption of Model Rule 8.4(g), the State Bar of South Dakota's adoption of proposed Rule 8.4(g), and the status of Rule 8.4(g) adoption in other states, especially South Dakota's sister states in the Eighth Circuit. The article makes the case for adopting 8.4(g) in South Dakota and addresses: the South Dakota legal profession's long-standing commitment to civility (Part III); the inadequacy of South Dakota's existing ethical provisions to deal with attorney harassment and discrimination (Part IV); and the constitutionality of the South Dakota proposed rule (Part V). The article ends with a summary of considerations for South Dakota as the South Dakota Supreme Court considers whether to adopt proposed Rule 8.4(g) (Parts V.D.3 and VI).

[. . .]

The South Dakota legal profession has the opportunity--through proposed rule 8.4(g)--to protect people from attorneys' harassing and discriminatory behavior and to demonstrate its commitment to equality, civility, and professionalism. Proposed rule 8.4(g) would create an authoritative ethics provision that puts lawyers on notice that such discrimination and harassment will not be tolerated. The proposed rule will also create an overdue counterpart to the state's judicial anti-bias provision.

As the South Dakota Supreme Court considers the specific language of the rule, it may want to re-evaluate the rule's scope by eliminating the prejudice to administration of justice requirement and perhaps substituting a specific scope, such as its sister states did in Iowa, Minnesota, and Missouri. Similarly, the Court may want to reconsider whether adding a constructive knowledge component to the rule would eliminate an “ignorance defense” from lawyers who refuse to learn what conduct is discriminatory and harassing. In doing so, South Dakota would join its sister states (Iowa, Minnesota, and Missouri) that have a constructive knowledge requirement in their rules.

As a practical matter, adopting proposed rule 8.4(g) will also allow the South Dakota Bar to better track complaints about harassment and discrimination, and measure the problem from that perspective. More generally, South Dakota has more to learn about the experiences of women and minority groups--both inside and outside the legal profession. The first natural step is to build on the Bar's important initial effort, which was to gather information through the 2018 survey of bar members about sexual harassment. We will not know why women are leaving the profession without closer examination, and we will not know about racial/ethnic minority attorneys' experiences with bias in the profession unless we ask.

UPDATE

In February 2020, shortly before this article was published, the South Dakota Supreme Court held a hearing to consider the proposed amendment to rule 8.4. Chief Justice Gilbertson penned a letter to the South Dakota State Bar on March 9, 2020, announcing the Court's unanimous decision not to adopt proposed rule 8.4(g). The Court provided a one-sentence explanation for its decision, noting that it was “not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.” Although the Court missed the opportunity to protect people from attorney discriminatory and harassing conduct by adopting the proposed rule, the Court did at least acknowledge the 2018 State Bar survey indicating that 20% of the respondents had experienced some form of sexual harassment in the legal profession, and agreed that the survey raises “significant concern.” The Court announced its plan to appoint a Commission by April 2020 to study and make recommendations to the Court on “how best to prevent and redress sexual harassment within the legal profession in South Dakota” and “to study whether the Rules provide a necessary framework to address the identified issues, including underreporting of complaints.”

Associate Professor, University of South Dakota School of Law. B.A., University of Maryland; J.D., University of Denver.

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