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Editorial Advisory Board: Time for an update to the Rule on harassment

At the Maryland State Bar Association’s recent annual meeting in June, the Ethics Committee presented a workshop on sexual harassment and discussed the evolution of the professional rules of responsibility for attorneys regarding harassment and discrimination both in the Maryland Rules and in the American Bar Association Model Rules.

In this area, the ABA seems to have surpassed Maryland, which hasn’t revisited the expansion of the Rules since the Court of Appeals adopted amended rules in 2005.

In 2016, the ABA amended its misconduct rule to add additional protected classes and broaden the scope of professional capacity. The language of the current rule, 8.4 (g), in part, is “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.”

The Rules Comment 3 defines “discrimination” and “harassment” as conduct that “undermines confidence in the legal profession and the legal system. Discrimination includes harmful verbal and physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”

Comment 4 notes the “practice of law” is defined as “representing clients, interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law, operating or managing a law firm or law practice, participating in bar association, business or social activities in connection with the practice of law.”

By comparison, the Maryland Rule on misconduct, 19-308.4, states “Knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section.”

This language is similar to the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with additions by Maryland’s Rules Committee, passed in 2005. At the time of its passage, it was considered progressive but has proven itself to have limited utility.

Unlike the ABA model rule, the Maryland Rule limits its scope to “prejudicial to the administration of justice” which can leave out many professional activities that attorneys engage in. As noted by the model rule, those activities would include operating a firm, participating in bar events, interacting with clients and witnesses, for example. Maryland is now one of three states that takes this narrow scope of limiting misconduct to the prejudicial to the administration of justice. The ABA model rule also extends the class of individuals to be protected to include on the basis of gender identity and marital status.

Under both rules, it is not a violation to limit the scope or subject matter of a lawyer’s practice.

In 2016, the Florida Bar Association surveyed its female bar members. Forty-three percent of respondents reported experiences of strong gender bias, including harassment by an opposing counsel, employer or court personnel. The survey response included over 90 pages of detailed personal experiences of female attorneys. There is no reason to believe there is an appreciable difference in the experience of Maryland’s female attorneys.

Rule overreach?

Our legal system is based on the notion of fairness and equal access. When attorneys behave in a discriminatory fashion, it not only negatively impacts the individual being mistreated, but also the general trust in our system of justice and tarnishes the reputation of lawyers.

Though the ABA Model Rule was adopted in 2016, Maryland’s Rules Committee has not taken this issue up for discussion. Admittedly, the ABA Model Rule has come under criticism for being too broad and impeding constitutional rights including free speech and religious freedoms. Currently, only one state, Vermont, has adopted the model rule, while others continue to consider it. Several states have rejected acceptance of the model rule. At the ABA conference in early August, there was discussion whether the model rule had overreached and was unadoptable for most states, as demonstrated by the states that have rejected the model rule. Proponents of the model rule believe a necessary evolution is occurring in the practice, as the days of thinking that sexual harassment wasn’t a problem ended with the #MeToo movement.

Whether the Rules Committee adopts the model rule in its entirety or decides to take a more targeted rule like they did in 2005, we believe it is time for the Rules Committee to revisit Maryland’s Rule on misconduct. As our understanding of harassment and discrimination has evolved over the last 13 years, so should the committee’s analysis on whether our current role is sufficient to protect our fellow attorneys, as well as the integrity of our legal profession.

Editorial Advisory Board members John Bainbridge Jr., Wesley D. Blakeslee, Arthur F. Fergenson, Stephen Meehan and H. Mark Stichel did not participate in this opinion.

James B. Astrachan, Chair
James K. Archibald
John Bainbridge Jr.
Wesley D. Blakeslee
Martha Ertman
Arthur F. Fergenson
Susan Francis
Marcella A. Holland
David Jaros
Ericka King
Stephen Meehan
C. William Michaels
Angela W. Russell
Debra G. Schubert
H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.