Rules Revision Commission Faces Aspirational Mission Creep

The direction from the top seemed pretty clear:

The second Commission should also be guided in its task by the principle that the [California Rules of Professional Conduct’s} historical purpose is to regulate the professional conduct of members of the bar, and that as such, the proposed rules should remain a set of minimum disciplinary standards. While the second Commission may be guided by and refer to the American Bar Association’s Model Rules of Professional Conduct when appropriate, it should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments.

Not everyone got the memo.  Consider this language:

In the management and operation of a law practice and in order to understand and properly protect and promote the public interest, members must engage in and promote a diverse and inclusive legal profession and practice. A diverse, inclusive and nondiscriminatory legal profession can be created and maintained through community engagement, strategic partnerships, education on access, fairness and the elimination of bias and by supporting a practice that reflects and is representative of the public and client community to be served.

This language is proposed as an addition to a new version of Rule of Professional Conduct 2-400,  Prohibited Discrimination in Law Practice Management and Operation,  to be re-numbered as new rule 8.4.1(c).   The proposed language comes from the State Bar’s  Council on Access & Fairness (COAF), a State Bar organ charged with “implementing the State Bar goals and strategies for increasing diversity in the legal profession and the elimination of bias in the practice of law.”  COAF also proposed in a letter to RRC2 dated October 26, 2015, that “existing Rule 2-400 be updated to reflect current employment protections under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) and public accommodations protections under the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.).”

Rule 2-400 is an interesting rule.  No lawyer has ever been disciplined for violating it.  It was enacted at the direction of the Legislature.  While it was duly approved by the California Supreme Court in 1994, the drafters drafted it is such a way as to make it very unlikely that anyone would ever be subject to discipline for violating it.  Rule 2-400 currently provides:

No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule.

At its November 13 meeting the Second Commission for the Revision of the Rules of Professional Conduct (RRC2) there was as strong consensus  to remove this language, on the theory that this language is preventing enforcement of the rule.  This would open the door to discipline proceedings based on complaint without a prior civil adjudication.   There was apparently no discussion of whether this rule is even needed.

Discrimination is a social evil that has been addressed by the civil law through statutory weapons like  FEHA and Unruh Act, just as other social evils have been.  Rules of Professional Conduct are not designed to address social evils;  they are yardsticks by which we measure the fitness of lawyers to practice.  Larding them up with a mission not related to that core function makes little sense.   Nonethless, a few states have added disciplinary rules that address discrimination in employment or use of discriminatory language in advocacy,  None have gone where the proposed new  2-400(b)(2) goes:

(b) In the management or operation of a law firm, a lawyer shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age, or disability in:…(2) accepting or terminating representation of any client.

It is unknown whether this will deter discrimination by lawyers.  What is certain is that it will create a whole new class of potential disciplinary culpabability that will require intense litigation.   I have represented lawyers who represent people in employment discrimination claims.  It is a volatile clientele  where issues regarding mental health are often involved.   Many lawyers and especially these lawyers  will now face the possibility of a State Bar complaint from the mentally ill ex-employee whose case they rejected as untenable or who became so difficult to work with that the lawyer withdrew.   Discrimination  is also a document heavy and witness heavy practice because proving discrimination is not easy and must often be done by creating a mosaic of many bits of evidence that show the discriminatory animus.  Proving it by the required burden of clear and convincing evidence will almost always be extremely time consuming and in most cases, probably impossible.

The State Bar Court, in a rare communication to RRC2, points out that the recently streamlined State Bar Court process, streamlined to eliminate both the formal rules of evidence and most discovery as a matter of right, is singularly unsuited to litigating discrmination claims which it might be  called upon to do if the condition preedent of a civil finding is eliminated.

By contrast, the Chief Trial Counsel, in a display of the  same “can-do” attitude that informed the now infamous backlog reduction project, assures RRC2 that OCTC is up to the task of enforcing whatever rules you want them to enforce.  They might want to look at this video when evaluating that claim:

Adopting the proposed Rule 2-400(B)(2) will not address the social evil of discrimination and will result in many employment lawyers having to respond to frivolous discrimination complaints made to the State Bar,  complaints that will mosly be unprosecutable.   It will create new work for already overworked attorneys and investigators at the State Bar.  And new work for discipline defense counsel;  the evil gremlin inside me who guards the fisc is grinning as I write.

No one, outside of a single public commentator, is asking why we need this Rule.   Perhaps the theory is that the mere existence of the Rule will serve as deterrant to an attorney who is contemplating committing discriminatory conduct.   Given the relatively low level of awareness regarding existing Rule 2-400, this seems firmly rooted in fantasy but the deterrance fantasy has been invoked before, most recently in the revision of the Standards for Attorney Sanctions for Professional  Misconduct (SASPM), where it floated to argue for increased  levels discipline for any and all misconduct.   But the real world effect may be called “civil litigation by other means.”   Damages as such are not available to the complainant in State Bar Court but the opportunity to inflict damage on the respondent lawyer, at little or no cost to the complainant,  may be tempting.  More work for the discipline system, work that will likely come to nought.

COAF’s proposed language is apparently still awaiting consideration.  But other opportunities to promote pure aspiration are on the docket.  At its January 2016 meeting,  RRC2 will consider a California version of ABA Model Rule 6.1, which provides that  “every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”

Why will it spend its time doing that in light of the Supreme Court’s explicit direction?  Because, despite what the Supreme Court says, the Rules of Professional Conduct are viewed by many as a vehicle for enforcing moral obligations, as opposed to “merely”  ethical ones.



And perhaps  because rule making inevitably becomes an exercise in sausage making in  Bismarckian sense.   The later impulse to accomodate interests not directly related to the mission of the discipline system proved to be the undoing of the fruit of RRC1.  Will it undo the work of RRC2?

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