Pennsylvania Supreme Court Adopts New Disciplinary Rule Including Discrimination as Misconduct

On June 8, 2020, the Pennsylvania Supreme Court approved adoption of Rule 8.4(g) broadening the definition of misconduct to include the following:

g) in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. 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 advice or advocacy consistent with these Rules. You can find the Court’s Order, which becomes effective in six months, here.

The American Bar Association adopted a slightly different version of Pennsylvania’s new rule in 2016, here. Since then, the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, the Pennsylvania Bar Association, the Philadelphia Bar Association,  and other bar associations in the state have campaigned to adopt a similar anti-discrimination provision to the Rules of Professional Conduct.

The Legal Intelligencer provided a good analysis of the new Rule here, with comments from me, along with my colleagues, Abe Reich and Thomas Wilkinson. As I stated in the article, I believe the adoption of this Rule is the right step at the right time.

The Pennsylvania Bar Association issued a statement on the passage of the Rule, found here, as did the Philadelphia Bar Association, found here.

Opposition to the new Rule was promoted by The Christian Legal Society and can be found here.

The Volokh Conspiracy has it’s own take on the new Rule, and provides some interesting historical perspectives on the different versions of the Rule that were previously rejected here.

Let me know in the comments what you think of the new rule and how it will affect our practice.  

With over 25+ years experience, Ellen C. Brotman began her career as a law clerk in the United States District Court, Southern District of New York. She has served as an Assistant Federal Defender in Philadelphia, PA and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics. She has defended a wide variety of high-profile criminal cases, including political and public corruption, securities fraud, tax fraud, money laundering, currency structuring and other white-collar crimes involving complex trial, sentencing and appellate issues. Ms. Brotman also has extensive experience representing lawyers before the Disciplinary Board of Pennsylvania. She has been recognized as a Best Lawyer and SuperLawyer since 2007 in the area of criminal defense and has served on the boards of the National Association of Criminal Defense Lawyers and the Pennsylvania Association of Criminal Defense Lawyers. She is the founder and owner of BrotmanLaw, Philadelphia, PA.

1 comments On Pennsylvania Supreme Court Adopts New Disciplinary Rule Including Discrimination as Misconduct

  • New Hampshire Advisory Committee on Rules Issues Report and Recommendation On February 8, the New Hampshire Supreme Court Advisory Committee on Rules (“Committee”) sent a  report and recommendation  to the New Hampshire Supreme Court. The report contained the final draft of proposed rules and rule amendments the Committee is recommending for adoption by the New Hampshire Supreme Court. Included in those recommendations is an amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. The Committee voted to recommend that the New Hampshire Supreme Court consider adding a provision (g) to Rule 8.4, making it professional misconduct for a lawyer to engage in harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, physical or mental disability, age, sexual orientation, marital status, or gender identity. The Committee also voted to recommend that the New Hampshire Supreme Court hold a public hearing before the full court on the proposed amendment to Rule 8.4 of the New Hampshire Rules of Professional Conduct. 

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