These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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21-Reporting Another Lawyer's Unethical Conduct

45-Law Firms - Miscellaneous

49-Lawyers - Miscellaneous

ABA Model Rule 8.4(g) prohibits conduct “that the lawyer knows or reasonably should know is” “harassment or discrimination on the basis of” specifically identifiable attributes, “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The prohibition applies to all “conduct related to the practice of law.” ABA Model Rule 8.4(g) thus applies “in non-litigation matters or at law firm social events or bar association functions” (although “Rule 8.4(g) does not regulate conduct unconnected to the practice of law, as do some other rules of professional conduct”). ABA Model Rule 8.4(g) “prohibits other conduct that is not covered by other law;” and might involve “a single instance of a lawyer” engaging in the prohibited conduct. “[T]he most common violations will likely involve conduct that is intentionally discriminatory or harassing.” “The existence of the requisite harm is assessed using a standard of objective reasonableness.” ABA Model Rule 8.4(g) specifically excludes from its prohibition “[l]egitimate advice or advocacy consistent with [the ABA Model Rules].” The following acts would not violate ABA Model Rule 8.4(g): (1) a First Amendment challenge to “a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities;” (2) a CLE program speaker “express[ing] the view” criticizing “a race-conscious process in admitting African-American students to highly ranked colleges and universities;” (3) a lawyer’s membership in “a religious organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.” The CLE speaker scenario does not violate ABA Model Rule 8.4(g), because “even a controversial [point of view] cannot reasonably be understood as harassment or discrimination contemplated by [ABA Model] Rule 8.4(g)” – and “[t]he fact that others may find a lawyer’s expression of social or political views to be inaccurate, offensive, or upsetting is not the type of ‘harm’ required for a violation.” The following acts would violate ABA Model Rule 8.4(g): (4) an adjunct professor/lawyer “supervising a law student in a law school clinic” making “repeated comments about the student’s appearance and also making unwelcome, nonconsensual physical contact of a sexual nature with the student” (which involves “conduct related to the practice of law,” although the “conduct . . . may not necessarily fall directly within the context of the representation of a client”); (5) law firm lawyers stating during a planning session or “an orientation program for newly-hired associates to familiarize them with firm policies and procedures” stating that lawyers should “never trust a Muslim lawyer” or “represent a Muslim client” (“[b]ecause the remarks were made within the law firm setting, they were ‘related to the practice of law”). In sum, ABA Model Rule 8.4(g) “does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.” (which “must necessarily be judged, in context, from an objectively reasonable perspective”).

Copyright 2000, Thomas E. Spahn