Proposed rule on harassment and discrimination opposed by Illinois Bar members

By Dawn Geske | Jan 5, 2017

SPRINGFIELD – A rule meant to fight harassment and discrimination was overwhelmingly opposed by the members of the Illinois State Bar Association.

The rule, ABA Model Rule of Professional Conduct 8.4(g), was voted down by the 23 section counsels at the ISBA convention held in Chicago on Dec. 10, 2016. All but two groups voted against enacting the rule, which was actually being rewritten all throughout the convention in an attempt to pass the rule by the association.

“What they proposed was language that many of the committees and section counsels objected to,” James McCluskey, second vice president for the ISBA and ISBA president-elect for 2018, told the Cook County Record. “At the convention, they rewrote the rule, and they were making changes really at the last minute because they wanted it to pass.”

The two groups that voted against Model Rule 8.4(g) were a minority section counsel and the Attorney Registration and Disciplinary Commission (ARDC) committee.

“It wasn’t a close vote,” said McCluskey. “It was a voice vote and a very strong voice vote against it.”

According to information released by the ISBA, under the Model Rule 8.4(g), it would be a violation of lawyer conduct to harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of law.

Illinois currently has a rule 8.4(j) that focuses on discrimination. The difference in the Model Rule 8.4(g) is its emphasis on harassment.

“The big issue is: Do we need a new rule when we have an Illinois rule that is specific on anti-discrimination?” said McCluskey.

The biggest concern to ISBA members was the broad interpretation of harassment that could leave members open to accusations of harassment in a social setting when they are not practicing law.

“That could be in a setting where you’re not even involved in the practice of law, and you say something that is interpreted,” said McCluskey. “It may be said by one person, but it’s received a different way by another person. If the law is passed, that subjective view of what the conduct is could be considered harassment and a violation of an ethical rule.”

Another area of concern regarding Model Rule 8.4(g) is its potential for infringement on free speech for attorneys.

“They feel the practice of law license is a privilege and you are limited in your free speech,” said McCluskey. “That really is one of the main objections by some of the members of the Illinois State Bar Association because they don’t believe their constitutional right should be limited. There’s a lot of subjective content to where somebody may believe they are being harassed.”

While McCluskey is not opposed to an ethical rule that covers harassment, he said he would be willing to make the language clearer and acceptable by the IBSA members.

“I would be willing to modify this and then take it back to the ISBA to see if the modification would be something they could accept because I could work on this rule and make it clearer,” said McCluskey.

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