New Developments in Comparative Legal Ethics — the Harassment Restriction

Earlier this week, the American Bar Association amended its legal ethics guidelines, the Model Rules of Professional Conduct, to clarify that sexual, racial and other forms of harassment can be grounds for professional discipline.

The Model Rules are just guidelines — they do not impose requirements on any lawyer.  Rather, state bar associations look to the Model Rules as they adopt their state-level, enforceable standards for legal practice. 

Some states have already adopted language in their ethics rules to establish penalties for harassment.  And some states have looked to regulate lawyers’ speech through so-called civility codes.  These codes, which dictate standards of decorum for lawyers and judges, have sometimes been challenged under the First Amendment on overbreadth grounds.  The harassment standards, in contrast, seem unlikely targets for such challenges, given that the ethics rules track existing law on discriminatory harassment.

Though the anti-harassment language is new to the ABA, anti-harassment has been part of the legal ethics rules of the Canadian bar for many years.  Yet Canada goes further than the ABA, and explicitly ties the harassment prohibition to nationally-recognized human rights norms.  As explained by the Law Society of Upper Canada, the anti-harassment rule is intended to preserve the “dignity of individuals.”

These comparisons certainly provide fodder for discussion in a Professional Responsibility class or a course devoted to domestic human rights implementation.  Perhaps the Canadian model also points the way for continued development of US legal ethics.