Abstract

Excerpted From: Tiffany Williams Brewer, The Sword and the Scale: Model Rule 8.4(g) as a Tool of Racial Justice in the Legal Profession, 128 Dickinson Law Review 501 (Winter, 2024) (121 Footnotes) (Full Document)

In the past five years, the concepts of racial justice and equity in the United States have received attention throughout the world. Contemporary focus on racial justice in education, policing, industry, public institutions, and among numerous professions creates an imperative for the legal profession to confront its own vulnerabilities. The legal profession has an opportunity to promote the elimination of bias and discrimination by holding its own members accountable for incidents of racial bias and discrimination. To promote confidence in the justice system, modern attorney ethics rules should hold attorneys accountable uniformly throughout the United States for engaging in conduct that manifests discrimination and bias.

As a framework for establishing a uniform national standard in anti-discrimination ethics rules, in 2016, the American Bar Association (ABA) passed an amendment to Model Rule of Professional Responsibility 8.4(g) (“Model Rule 8.4(g)”), categorizing engagement in bias, discrimination, or harassment in the profession as actionable attorney misconduct. According to ABA Model Rule of Professional Conduct 8.4(g):

It is professional misconduct for a lawyer to:c...

(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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

While many states have enacted anti-discrimination and anti-bias provisions modeled after Model Rule 8.4(g) in their state lawyer ethics codes, efforts at enactment in the remaining states have stalled in an echo chamber of critique. The lack of uniformity among state ethics codes in enacting anti-discrimination rules has left the legal profession in an inconsistent state of disarray, with only pockets of accountability.

This Article illuminates the virtues of anti-discrimination ethics code provisions, like Model Rule 8.4(g), as powerful tools in promoting the elimination of bias and discrimination (the sword) and improving the balance of diversity in the profession (the scale). This Article highlights the importance of setting uniform professional ethical standards that: (1) hold lawyers accountable for discrimination and bias; (2) deter discriminatory conduct that undermines confidence in the profession; and (3) remediate the lack of progress of attorneys of color, particularly Black female lawyers. This Article also uses Model Rule 8.4(g) to call to action states that have resisted enacting an anti-discrimination rule for lawyers.

This Article highlights how, by providing accountability for bias and discrimination perpetuated by its own members, the legal profession can contribute to greater diversity and open pathways for the advancement of attorneys of color within the profession. The Article illuminates the existence of bias and discrimination in the profession and its impact on the advancement of attorneys of color, including attorneys who confront the intersectional implications of racial and gender discrimination. By emphasizing the need for a uniform anti-discrimination rule throughout the legal profession, this Article serves as a call to action for jurisdictions that have failed to adopt Model Rule 8.4(g) or any other anti-discrimination rule to hold lawyers accountable for bias and discrimination.

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States should adopt a version of Model Rule 8.4(g) that includes a proscription against bias and discrimination in the practice of law to ensure that attorneys of color and women are able to advance in the profession. Women of color in particular need a remedial response mechanism to address the bias and discrimination impeding their career trajectory and economic advancement. Implementation of an ethics rule holding lawyers accountable for bias and discrimination in the profession is vital to remediating ill effects suffered by women of color in the profession, given that many women of color encounter bias and discrimination at the hands of other lawyers in their practice. Without accountability built into the attorney ethics rules, women of color have no remedy. Further, state ethics authorities should provide the enforcement mechanism to ensure that attorneys take adherence to anti-discrimination rules seriously, or else any remedy provided is toothless.

Given the stark barriers that attorneys of color face in advancing their careers, elimination of bias must remain among the highest priorities in the legal profession. Despite the foundational support in existing ethics authority, further action is required in the form of the adoption of uniform explicit language in lawyer ethics codes throughout the country to improve the gaps in the profession's ability to eliminate bias and discrimination. While every state within the United States has the exclusive right to regulate the conduct and licensing of lawyers within its jurisdiction, the ABA Model Rules exist to incentivize uniformity throughout the nation in areas of professional responsibility deemed most essential to upholding the integrity of the profession. In the words of Frederick Douglass, “[i]f there is no struggle, there is no progress.” The time for progress is now.

Tiffany Williams Brewer is an Assistant Professor of Law at Howard University School of Law and Chair of the New Jersey State Commission of Investigation.