August 2017
Status – The Tennessee Bar Association Board of Governors is considering amending its Rule of Professional Conduct 8.4
One of the agenda items at the most recent meeting (June 17, 2017) of the Tennessee Bar Association (“TBA”) Board of Governors was a Report and Recommendations of the TBA Standing Committee on Ethics and Professional Responsibility (“the Ethics Committee”) regarding Tennessee Rule of Professional Conduct 8.4(g). In summary, the Ethics Committee recommended adopting an anti-harassment and anti-discrimination ethics rule. According to the report, the Ethics Committee had spent several months debating and discussing whether to recommend pursuing a revision of Tennessee’s misconduct rule, TN RPC 8.4, along the lines of the ABA’s Model Rule 8.4(g). After much discussion, the Ethics Committee voted 15 to 9 in favor of amending TN RPC 8.4, providing the proposed rule contained additional language “unique to Tennessee … to make very clear the scope of protected First Amendment activity lawyers would still retain." Find the full Report and Recommendation at the following link: http://www.tba.org/sites/default/files/tab_11_-_rpc_8.4g.pdf.
Currently, it is unclear where the proposed amendment stands; however, the Tennessee Supreme Court does not yet appear to be soliciting comments from the public regarding the proposed changes to TN RPC 8.4 at this time. CLS will continue to monitor the situation in Tennessee.
Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice
Comment
[3] A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio‑economic status violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d).
Proposed Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
(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.
Comment
[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or 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. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
[4] Conduct related to the practice of law includes 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; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations. Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer acts as an advocate, such as litigation.
[4a] Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.
[5a] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g).
[5b] A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law.
[5c] Lawyers should be mindful of their professional obligations under RPC 6.1 to provide legal services to those who are unable to pay, and their obligation under RPC 6.2 not to avoid appointments from a tribunal except for good cause. Nevertheless, a lawyer does not engage in conduct that harasses or discriminates based on socioeconomic status merely by charging and collecting reasonable fees and expenses for a representation.
[5d] A lawyer’s representation of a client does not constitute an endorsement by he lawyer of the client’s views or activities. See RPC 1.2(b).