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Leveling the playing field, part IV: California and ABA ethical rules

Legal and ethical rules governing claims of bias and discrimination

In addition to federal and state law, there are a number of ethical rules that relate to the issue of bias and discrimination in the practice of law. A working knowledge of these rules is essential to ensure that you are not only maintaining a workplace free from actionable discrimination, but you are also maintaining a legal practice that is successful as well as ethical.

One of the reasons lawyers need to know about the laws governing bias and discrimination is because we are ethically mandated to follow them. The conduct of California lawyers is governed by California Business and Professions Code Section 6068, which enumerates the duties of an attorney. Business and Professions Code 6068(a) states that one of these duties is “to support the Constitution and laws of the United States and of this state.”

Unbeknownst to many lawyers, California actually has a rule of professional conduct specifically on the topic of bias and discrimination. California Rule of Professional Conduct 2-400(B)(2), Prohibited Discriminatory Conduct in a Law Practice, states, "In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in (1) hiring, promoting, discharging, or otherwise determining the conditions of employment; or (2) accepting or terminating representation of any client."

Under California Rule of Professional Conduct 2-400(C), the State Bar cannot initiate any proceedings until the offense is proven in civil court and affirmed on appeal, or proven in civil court and the time for appeal has expired, or the appeal has been dismissed. Note, however, that the discussion section of this rule states that a disciplinary investigation relating to conduct coming within this rule can be initiated under California Business and Professions Code sections 6106 (moral turpitude, dishonesty or corruption) and 6068 (duties as an attorney).

The issue of bias and discrimination in the practice of law is addressed in the American Bar Association Model Rules as well. Rule 8.4, Misconduct, which deals with maintaining the integrity of the legal profession, states in pertinent part that it is professional misconduct for a lawyer to “(d) engage in conduct that is prejudicial to the administration of justice.” Rule 8.4 Comment [3] clarifies that “a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”

Many lawyers have asked about the language in California Rule 2-400(B) (2) prohibiting any unlawful discrimination in accepting representation of any client. What, for example, does the law firm do when a potential client comes in bearing a prominent Ku Klux Klan tattoo on his forearm and a T-shirt with a large swastika on it, seeking representation on a politically charged matter? Would turning such a client away constitute unlawful discrimination?

This question often divides the room when posed at bias seminars. Some employers argue that they are under no obligation to accept every case that walks in the door, and in fact, would worry about their reputation were they to take on such unpopular clients. Other employers state that they have an obligation to provide effective representation to everyone, and would just hand the man a long-sleeved plain T-shirt to wear when he came into the firm for a meeting so as not to create a hostile work environment for the rest of the employees.

Ultimately, however, the question is posed: Into which protected class does this man fit that turning him away would constitute discrimination in the first place, never mind unlawful discrimination? It may be that declining to represent this man is a decision that is not made based on his membership in any of the protected classes.

Tune in next month as we continue to explore the nuances of the application of the California and ABA rules to issues of bias and discrimination in the practice of law.



Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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