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Putting the Profession on Notice: Marna Tucker on ABA's Anti-Discrimination Rule

By Tracy Schorn 

September 15, 2016

In August the American Bar Association adopted a resolution to add language to the text of Rule 8.4 of its Model Rules of Professional Conduct to make it professional misconduct for a lawyer to harass or discriminate in conduct related to the practice of law.  

The resolution that revised Model Rule 8.4 specifically prohibits conduct a lawyer knows or reasonably should know is harassment or discrimination on the basis of race, religion, sex, disability, LGBTQ status, and other factors. Previously, such behavior could subject a lawyer to discipline under Model Rule 8.4 only if it occurred during the course of a representation and was also found to be prejudicial to the administration of justice as explained in former Comment [3] to the rule. While comments explain the meaning and purpose of the ethics rules, the text of each rule is controlling. New ABA Model Rule 8.4(g) governs a lawyer's behavior, not only in the courtroom, but in all conduct related to the practice of law including within law firms, and at bar sponsored events.   

The D.C. Bar recently spoke with Marna S. Tucker, the first woman president of the D.C. Bar (1984–85), about her reaction to the news.  

D.C. Bar: You once said in an interview that when you began practicing law, discrimination was so ingrained that it was just accepted practice.

Marna TuckerTucker: I've witnessed huge changes in the legal profession affecting the advancement of women and minorities since I passed the bar 50 years ago. In those early days, discrimination was steeped in the culture. Sexual harassment was not even part of the lexicon. If you were a woman or minority lawyer, you had to figure out how to work around the biases against you or take a role in designing the solution to abolish it. I chose to take part in trying to change it. 

How did those changes happen? How do you change a culture? 

Those changes happened because of a long-term strategy and the hard work of many, many people over many years. That strategy included educating the profession about discrimination and its impact. Education began by courts and bar associations establishing task forces to examine and expose discrimination and recommend changes in the courts and the profession. Change was fed by the adoption of federal and state laws affecting employment, education, and public accommodations. Codes of professional responsibility for attorneys and judges, the law of lawyers, tried to seal the cultural changes into the ethical requirements of our profession.   

What's meaningful about this new ABA provision?

As early as 1991, the D.C. Court of Appeals adopted D.C. Rule 9.1, which prohibits a lawyer from discriminating against individuals in conditions of employment because of many of the factors now included in Model Rule 8.4(g), including race, religion, sexual orientation and age. D.C. Rule 8.4 also currently includes a provision in its comments that is similar to the former Model Rule Comment [3]. However, the recent changes by the [ABA] to its Model Rules of Professional Conduct have given even clearer guidelines to what should be considered professional misconduct. Although discrimination and harassment in the workplace by lawyers has been part of the commentary to the Model Rules, by clearly identifying and prohibiting such behavior in the Rule itself, the profession is on notice, loud and clear, that sexual harassment and discrimination will not be tolerated in the practice of law. My hope is that the D.C. Bar will recommend and the D.C. Court of Appeals will adopt this change to the D.C. Rules of Professional Conduct as well. 

Slowly but surely, this will lead to more cultural change. Locker room talk and private derision based on race and sex will no doubt continue, but at least the legal profession has struck another blow in the corners it can reach.