California lawyers will be responsible for harassment and discrimination—not just by them, but by any employee of their firms—under a package of state Supreme Court-approved professional conduct rules.
The years-in-the-making rules, approved May 10 and taking effect this fall, comes weeks after Chief Justice Tani Cantil-Sakauye proposed publicly releasing harassment and discrimination settlements involving judges and court employees. The lifting of the veil of secrecy arrives amid the #MeToo movement revealing sexual misconduct, harassment, and discrimination affecting a number of industries.
A one-two punch in the new Rule 8.4.1 is a provision that lawyers are required to notify the bar of “any criminal, civil, or administrative action premised, in whole or in part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding.” So a lawyer sued for harassment will have to advise the bar of this, potentially putting more heat on him for the alleged conduct.
The rules “have been long in coming and will be beneficial to both lawyers and consumers,” attorney Mark L. Tuft told Bloomberg Law. Tuft has been involved for 17 years in initiatives to revise California’s legal rules.
“The rules provide greater public protection and better uniformity and understanding of professional responsibility by lawyers and regulators. The rules are nuanced to conform to California law so one should not assume California has simply adopted the [American Bar Association] Model Rules. More needs to done but this a welcome change for California lawyers,” Tuft said May 11. Tuft is with Cooper, White & Cooper LLP in San Francisco.
The Rules of Professional Conduct incorporate much of the ABA’s rules with laws specific to California.
California lawyers’ conduct is governed by the California Supreme Court as the ultimate party to license and discipline attorneys, and the California State Bar Act.
The rules cover lawyers licensed to practice in California and out-of-state attorneys who are granted permission to appear in court in California, much like rules for drivers cover those driving on state roads regardless of where they’re licensed.
No Harassment, Discrimination, Retaliation
Under the new rule, lawyers can’t discriminate, harass, or retaliate against a client, employee, intern, volunteer, applicant, or contractor based on a “protected characteristic.” The definition of protected characteristic includes race, religion, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sex, gender, gender identity or expression, sexual orientation, age, and military or veteran status.
“Conduct that violates this rule undermines the confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal,” a comment that is part of the rule said. “A lawyer may not engage in such conduct through the acts of another.”
The revised rules were filed in March 2017. The state bar in 2015 launched a second Commission for the Revision of the Rules of Professional Conduct after the California Supreme Court abruptly told the bar to go back to the drawing board in its years-long effort to update the state’s lawyer conduct rules.
The commission worked at breakneck speed to generate a full set of rule updates in less than two years.
“This marks the first overhaul of ethics rules for attorneys licensed in California in nearly 30 years,” bar Executive Director Leah T. Wilson said in a statement. Wilson thanked the commission, bar Board of Trustees, and the court “bringing about these fundamental changes to attorney ethics rules.”
The justices have “done a miraculous job,” Tuft said. “Knowing how long it has taken us, it’s a huge paradigm shift from the existing California rules.”