Sorry Toots, the Boys Can't Call Ya Honey Anymore

By Casey C. Sullivan, Esq. on August 10, 2016 | Last updated on March 21, 2019

It just got harder to demean other attorneys on the basis of race, religion, sex, disability, age, or other factors, when engaging in conduct related to the practice of law. On Monday, at the American Bar Association's national meeting in San Francisco, the ABA adopted new rules that make it professional misconduct to engage in discriminatory behavior.

To some, the new rules are a needed bulwark against "too many 'honeys,' 'darlings' and other sexist remarks" in the legal profession, while others complain that they threaten attorneys' free speech.

Welcome Resolution 109

Resolution 109, as it's called, amends Rule 8.4 of the ABA Model Rules of Professional Conduct to expand the definition of attorney misconduct, making it a violation to:

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 the law.

The resolution notes that it "does not preclude legitimate advice or advocacy" and explicitly states that some activities, such as recruiting minority attorneys or exercising discriminatory peremptory challenges, are not violations.

But the rule's reach is long, as well. "Conduct related to the practice of law" is defined as everything from representing clients, to operating a law firm, to participating in "business or social activities in connection with the practice of law."

Nothing to Worry Your Pretty Little Head About?

Advocates of the rule change say that it's needed to combat bias in the legal industry. That bias can, for example, result in attorneys being told that their zealous advocacy is "not becoming of a woman." It may also contribute to the law being one of the whitest professions in America.

But the resolution had its opponents -- just not any willing to argue against it at the ABA's annual meeting. Eugene Volokh has written critically of the rule several times, arguing that the rule change is so broad it could punish legitimate political debate -- even cocktail banter. He describes the new rule's "pro-equality " stance as an "overtly viewpoint-based" restriction on speech, raising not insignificant First Amendment issues.

But, in adopting the new misconduct definition, the ABA isn't exactly sailing in to uncharted waters. Twenty-three states and the District of Columbia adopted similar definitions of misconduct, well before the ABA proposed a nationwide standard.

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