By Gayle Eskridge, Principal, Eskridge Law, and member and former Chair, LACBA Professional Responsibility and Ethics Committee. She can be reached at geskridge@eskridgelaw.net. The opinions expressed below are her own.
The new California Rules of Professional Conduct (the “Rules”) include significant changes to the rule regarding civil rights. New rule 8.4.1 replaces old rule 2-400 and significantly expands the prohibitions in the areas of discrimination, harassment, and retaliation. Rule 8.4.1 is fairly lengthy, and there are also six official comments to rule 8.4.1, all of which provide clarification of the rule or interpretive guidance regarding its application.
One of the significant changes which is seen in the new rule is that the protected characteristics have been updated to align with the protected characteristics which are currently set forth in the California Fair Employment and Housing Act and other civil rights laws. Where rule 2-400 described only seven protected characteristics (race, national origin, sex, sexual orientation, religion, age, and disability), rule 8.4.1 renames some characteristics and adds others, so there are now eighteen protected characteristics (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). There is also a catch-all provision for “other category of discrimination prohibited by applicable law,” since new categories are being added regularly. As with other laws relating to discrimination and harassment, rule 8.4.1 includes both actual and perceived protected characteristics. [Rule 8.4.1(c)(1).]
The prohibition against unlawful discrimination applies when a lawyer is “representing a client, or in terminating or refusing to accept the representation of any client.” [Rule 8.4.1(a).] As used throughout the Rules, “‘unlawfully’ or ‘unlawful’ shall be determined by reference to applicable state and federal statutes and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public.” [Rule 8.4.1(c)(3).] The rule against “unlawful” discrimination also applies in relation to a law firm’s operations, and provides that a lawyer shall not, on the basis of any protected characteristic, unlawfully discriminate or knowingly permit unlawful discrimination. [Rule 8.4.1(b)(1)(i).] As used throughout rule 8.4.1, “knowingly permit” means “to fail to advocate corrective action1 where the lawyer knows of a discriminatory policy or practice that results in the unlawful discrimination. . . .” [Rule 8.4.1(c)(2).]
A lawyer also shall not “unlawfully refuse to hire or employ a person, or refuse to select a person for a training program leading to employment, or bar or discharge a person from employment or from a training program leading to employment, or discriminate against a person in compensation or in terms, conditions, or privileges of employment.” [Rule 8.4.1(b)(1)(iii).] “Person” has the meaning as stated in Evidence Code section 175. [Rule 1.0.1(g-1).]
The new prohibition against unlawful harassment applies when a lawyer is “representing a client, or in terminating or refusing to accept the representation of any client.” [Rule 8.4.1(a)(1).] Rule 8.4.1 also applies in relation to a law firm’s operations. In that context, a lawyer shall not “unlawfully harass or knowingly permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.” [Rule 8.4.1(b)(1)(ii).]
Rule 8.4.1 also prohibits unlawful retaliation of persons. “Retaliate” means “to take adverse action against a person because that person has (i) opposed, or (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by paragraphs (a)(1) or (b)(1) of [the] rule.” [Rule 8.4.1(c)(4).] The rule against unlawful retaliation applies when a lawyer is “representing a client, or in terminating or refusing to accept the representation of any client.” [Rule 8.4.1(a)(2).] It also applies to all “persons” in relation to a law firm’s operations. [Rule 8.4.1(b)(2).]
In a major departure from rule 2-400, rule 8.4.1 contains no requirement for a prior adjudication before the State Bar will become involved. Rule 2-400 required that a “tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred” before any disciplinary investigation or proceeding could be initiated by the State Bar. [Rule 2-400(C).] Rule 8.4.1 does not require any such prior adjudication.
If a lawyer is subject to State Bar Involvement (either a State Bar investigation or a State Bar Court proceeding) in which a violation of Rule 8.4.1 is alleged, the lawyer is required to promptly notify the State Bar of any criminal, civil, or administrative action which is “premised, whether in whole or part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding.” [Rule 8.4.1(d).] An “administrative action” would presumably include such things as complaints filed with the California Department of Fair Employment and Housing (“DFEH”) and the United States Equal Employment Opportunity Commission (“EEOC”), although that is not specifically detailed in the rule or in the official comments. What constitutes an “action” is also not specifically detailed. Comment 6 simply states that paragraph (d) “ensures that the State Bar and the State Bar Court will be provided with information regarding related proceedings that may be relevant in determining whether a State Bar investigation or a State Bar Court proceeding relating to a violation of this rule should be abated.” [Rule 8.4.1, Comment 6.] Additionally, whether a procedure such as filing a complaint with the DFEH and requesting an immediate notice of case closure/right-to-sue letter would constitute an “action” is as yet unclear. Therefore, since neither exactly which administrative actions would be encompassed by this rule, nor what would constitute an “action” under this rule, is completely clear at this time, caution would dictate that if in doubt as to whether an administrative procedure is covered by this rule, a lawyer should notify the State Bar.
Conversely, when a lawyer is issued a notice of a disciplinary charge, it is required that the lawyer report that notice of disciplinary charge to certain administrative agencies – to the DFEH and the United States Department of Justice, Coordination and Review Section for violations under rule 8.4.1(a) (involving clients), and to the DFEH and the EEOC for violations under rule 8.4.1(b) (regarding law firm operations). [Rule 8.4.1(e).]
Rule 8.4.1 contains no preclusion against representing a client alleged to have engaged in unlawful discrimination, harassment, or retaliation. It also does not preclude a lawyer from declining or withdrawing from a representation as required or permitted by rule 1.16 (Declining or Terminating Representation). Rule 8.4.1 also does not preclude a lawyer from providing advice and engaging in advocacy as otherwise required or permitted by the Rules of Professional Conduct and the State Bar Act. [Rule 8.4.1(f).]
1 Comment 5 to rule 8.4.1 explains that a “failure to advocate corrective action” under paragraph (c)(2) will depend on the nature and seriousness of the discriminatory policy or practice, the extent to which the lawyer knows of unlawful discrimination or harassment resulting from that policy or practice, and the nature of the lawyer’s relationship to the lawyer or law firm implementing that policy or practice.