The California Rules of Professional Conduct (“CRPC”) included a new rule in 2018 that prohibits attorneys from participating in discrimination, harassment and retaliation in representing a client. It also prohibits discrimination in the law firm’s operations. Specifically, CRPC 8.4.1 provides:
“(a) In representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not:
(1) unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic; or
(2) unlawfully retaliate against persons.
(b) In relation to a law firm’s operations, a lawyer shall not:
(1) on the basis of any protected characteristic,
(i) unlawfully discriminate or knowingly permit unlawful discrimination;
(ii) unlawfully harass or knowingly permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract; or
(iii) unlawfully refuse to hire or employ a person, or refuse to select a person for a training program leading to employment, or bar or discharge a person from employment or from a training program leading to employment, or discriminate against a person in compensation or in terms, conditions, or privileges of employment; or
(2) unlawfully retaliate against persons.”
Rule 8.4.1 prohibits “unlawful” discrimination, harassment or retaliation, which may create ambiguity. The rule states that “unlawful” “shall be determined by reference to applicable state and federal statues and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public.” CRPC 8.4.1(c)(3). Since there are different standards in both the state and federal statutes and decisions, it may be difficult for attorneys to determine when there is a violation.
CRPC 8.4.1 has a variety of applications. For example, what are the obligations of an attorney if a client dictates a violation of CRPC 8.4.1(b)(1) by stating that the client does not want any person who is [insert the protected class] to work on any of their matters, because the “client doesn’t feel comfortable” with the person? Should the attorney abide by the client’s directions?
It is this author’s opinion that such conduct presents a “teachable moment” for the client. An attorney should have the autonomy to provide the level of competent representation (CRPC 1.1) they feel is necessary, including selecting the lawyers they believe will best meet the needs of the client. If the client still insists on its discriminatory request, the lawyer may decline the representation, and the lawyer must decline it if the law firm would truly not be able to provide competent representation.
CRPC 8.4.1 could also apply in a social setting with associates and partners, where one of them engages in behavior that could be considered “harassment” or create a “hostile work environment.” If the incident is unlawful, it would violate CRPC 8.4.1.
Moreover, CRPC 8.4.1 implicates CRPC 5.1 and CRPC 5.2. Under CRPC 5.1, supervising attorneys have an obligation to supervise their subordinates. This may mean providing adequate on-going training to every member of the firm. See also CRPC 5.3. Under CRPC 5.2, attorneys, including subordinate attorneys, cannot remain silent if they observe discrimination and harassment occurring in the practice of law which impact the services that they are providing clients. All attorneys must abide by the CRPCs, including CRPC 8.4.1.
Dianne Jackson McLean is a partner at the law firm of Goldfarb & Lipman LLP, where she is a transactional attorney, representing public housing authorities, cities, and other government agencies in complex mixed finance affordable housing transactions and economic development matters. Ms. Jackson McLean also provides advice to her firm on ethics. Ms. Jackson McLean is the former chair of the BASF Legal Ethics Committee.