Happy February! In November 2018, 69 new or amended California Rules of Professional Conduct (“CRPC”) were thrust upon California’s more than 250,000 lawyers. These rules were renumbered and reorganized to align with the American Bar Association’s (“ABA”) Model Rules and replaced the 46 ethics rules that California lawyers had been following for nearly 30 years. Despite each of us having been responsible for adhering to these rules over the last year, many California lawyers and law firms still do not know, or do not fully appreciate, the significance of the modifications. Therefore, as we enter into this new decade and the second full year of these rules being in effect, I invite you and your firm to join my 12-step program to healthier law practice in 2020 and the years to come. Each month I will feature an article on the key ethics rule changes aimed at guiding you and your firm to a healthier law practice by better managing your risk of liability. Step 1 – Responsibility was published in January 2020.
You can access each article directly on this blog page or you can subscribe to this blog to ensure that you don’t miss any of the 12-steps. Please note that the articles on this blog are not legal advice and do not take into account specific facts or circumstances for which a tailored analysis and risk management plan is recommended.
STEP 2 – TREAT OTHERS THE WAY YOU WANT TO BE TREATED
We all know of the “Golden Rule” (or variations thereof): “Treat others the way you want to be treated.” According to Wikipedia, this moral “can be considered an ethic of reciprocity in some religions[,]” and “may appear as a positive or negative injunction governing conduct.” The maxim is golden because its application has value in every aspect of our lives. The workplace or, more specifically for our purposes, the practice of law, is no exception. Much like in society at large, this “golden rule” is not naturally followed by every lawyer, so it had be made into an actual legal ethics rule, … or should I say rules, with an “s”.
There are several California ethics rules that stress the importance of treating others with fairness, respect and honesty, whether it be our clients or perspective clients (e.g. Rule 7.1 – Communications Concerning a Lawyer’s Services), the court (e.g. Rule 3.3 – Candor Toward the Tribunal), the opposing party or opposing counsel (e.g. Rule 3.4 – Fairness to Opposing Party and Counsel), or others (e.g. Rule 4.1 – Truthfulness in Statements to Others). I dare say there is no one among us who has not been disrespected, cheated and/or lied to in the practice of law, or in life, unfortunately. On a basic level, it is because each one of us has been on the receiving end of such mistreatment that we can, or at least should be able to, gage our behavior and, hopefully, choose not subject others to the same or similar mistreatment.
What about mistreatment that some among us have been fortunate enough not to experience firsthand, such as harassment, discrimination and/or retaliation? Is it possible for someone to avoid bad behavior that he or she has no personal understanding of, or, perhaps, does not recognize as bad, unfair, disrespectful or inappropriate?
The California Rules of Professional Conduct are “intended to regulate professional conduct of lawyers through discipline.” Rule 1.0(a). A willful violation of any rule is a basis for discipline, and it does not require that the lawyer intend to violate the rule. Rule 1.0(b)(1), Comment . Although an ethics rule concerning discrimination has been on the books in California since March 1, 1994, long before subsection (g) was added to Model Rule 8.4 in 2016, old California rule 2-400, entitled “Prohibited Discriminatory Conduct in a Law Practice,” was a mere gesture.
Old rule 2-400 only applied to “the management or operation of a law practice” and did not expressly cover retaliation. Significantly, despite there being no other rule of professional conduct that limited the original jurisdiction of the State Bar, old rule 2-400 also required a final, civil adjudication of a discrimination claim before the State Bar could even investigate that claim. The pre-adjudication requirement stated, “[n]o disciplinary investigation or proceeding may be initiated by the State Bar against a member unless and until a tribunal of competent jurisdiction … shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred.” No actual discipline could be imposed until the finding of unlawfulness was either: (1) upheld and final after appeal; (2) the time for filing an appeal had expired; or (3) the appeal was dismissed. See old rule 2-400(C). Even then, the finding or verdict from the required, prior litigation cold only be used as mere evidence in the State Bar action. In other words, while the rule potentially regulated discrimination, the prerequisite rendered the old rule impossible to enforce because if prior litigation was not pursued, the conduct was ultimately adjudicated to not be discriminatory, the decision was reversed on appeal, or the litigation was resolved through settlement, the lawyer could escape State Bar castigation. In fact, when the new rule was being proposed, the rules commission cited to the fact that there is no record of any lawyer being disciplined under old rule 2-400.
California’s new rule 8.4.1 entitled “Prohibited Discrimination, Harassment and Retaliation,” is much more comprehensive than the old rule and its Model Rule counterpart, rule 8.4(g). Rule 8.4.1(a)(1) prohibits a lawyer from unlawfully harassing, unlawfully discriminating or knowingly permitting such harassment or discrimination against persons on the basis of any protected characteristic. “Protected characteristic” is defined to mean “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived. Rule 8.4.1(e)(1). Rule 8.4.1(a)(2) prohibits a lawyer from unlawfully retaliating as well.
Paragraph (b) addresses law firm operations, which further prohibits unlawful discrimination or knowingly permitting the unlawful discrimination on the basis of a protected characteristic (Rule 8.4.1(b)(1)(i)), as well as prohibiting unlawful harassment or knowing permitting the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract on the basis of any protected characteristic (Rule 8.4.1(b)(1)(ii)). It further prohibits the unlawful refusal to hire, employ, select, bar, or discharge a person from employment or a training program leading to employment on the basis of a protected characteristic. Rule 8.4.1(b)(1)(iii). Additionally, a lawyer shall not discriminate against a persons on the basis of a protected characteristic in compensation or in terms, conditions, or privileges of employment (Rule 8.4.1(b)(1)(iii)); or unlawfully retaliate (Rule 8.4.1(b)(2)).
The scope of the rule is limited to unlawful conduct as determined by reference to applicable state and federal statutes and decisions, and excludes conduct protected by the First Amendment. Importantly, it imposes upon “all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its lawyers or non-lawyer personnel.” Rule 8.4.1, Comment . Comment  further clarifies, “[n]either this rule nor rule 5.1 or 5.3 imposes on the alleged victim of any conduct prohibited by this rule any responsibility to advocate corrective action.” See also Step 1 – Responsibility, published on this blog in January 2020, which details a lawyer’s responsibilities to others under rules 5.1-5.3. Comment  additionally addresses what constitutes a failure to advocate corrective action under paragraph (c)(2).
Significantly, the new rule is not just for show, but allows the bar to act on its own and open an investigation into such allegations without the need for a triggering civil finding by another agency. Comment  to the rule makes clear that discipline may be imposed “for conduct that would not necessarily result in the award of a remedy in a civil or administrative proceeding if such proceeding were filed.” A lawyer who receives notice of a disciplinary charge under this rule is required to self-report and notify state and federal workplace-fairness agencies of the disciplinary charge. Rule 8.4.1(e). This requirement gives relevant government agencies the opportunity to get involved so that they may implement and advance the broad legislative policies with which they have been charged.
The Golden Rule is not contingent on the color of our skin, religious creed, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law. Every single one of us wants to be treated with dignity and respect, and, in turn, we should treat all others the way we expect to be treated. As required by rule 5.1, law firms should have policies and procedures in place addressing discrimination, harassment and retaliation, not only in an effort ensure its lawyers’ compliance with this rule, but, even more importantly, to insist on providing a safe and healthy workplace environment and culture.
Please contact author, Kendra Basner, if you have any questions about this article or if you would like guidance as to the application of or compliance with these rules.