Montana may soon adopt changes to its Model Rules of Professional Conduct aimed at making discriminatory conduct related to the practice of law a thing of the past. Proposed Rule 8.4(g), adopted this past August at the American Bar Association’s Annual Meeting, has been submitted directly to the bar by the Montana Supreme Court. The proposal is being considered by the State Bar of Montana’s Ethics Committee at the time of this writing.
As detailed in the Report to the ABA House of Delegates, the proposed rule is an offshoot of the goals adopted by the House of Delegates under then President Bill Neukum; specifically Goal III, which aims to “eliminate bias and enhance diversity.” A year prior to the adoption of Goal III, the Model Code of Judicial Conduct was revised to prohibit bias and/or discrimination on the basis of “race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or political affiliation.” Those changes were adopted into Rule 2.3 of the Montana Code of Judicial Conduct in December, 2008.
While the Civil Rights Act of 1964 and the Montana Human Rights Act have long provided protections from workplace discrimination, one need not search far to find tales of boorish behavior and worse in the practice of law. The addition of a specific rule for the same will be welcomed in many quarters. In fact, according to the Report, twenty-two states and the District of Columbia already have adopted anti-discrimination and/or harassment provisions into their own rules of professional conduct.
However, the proposed rule was not without controversy as it made its way through the ABA resolution process, with the final ABA rule including an amendment, among others, to include a mens rea requirement. That change was consistent with the recommendations of the ABA Section of Labor and Employment Law.
The Montana proposed rule states that a lawyer shall not:
engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (Emphasis added.)
Proposed Rule 8.4(g) is interesting in several respects. Without question, it will require the Office of Disciplinary Counsel and the Montana Commission on Practice to become well-versed in what is, and what is not, harassment and/or discrimination. That is a departure from the typical work of both entities, which is focused upon the practice of law, most often in its routine aspects. Assessing discriminatory conduct will require using decisional law outside of the present body of the self-regulatory decisions for the profession. That reality is something the ABA understood at the time of passage and is addressed in a new Comment.
 Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g). (Emphasis added.)
What does “in conduct related to the practice of law” mean. Well, Comment 4 provides guidance, and the guidance is broad:
 Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations. (Emphasis added.)
 A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g).
The new rule is interesting in other respects as well. Montana law does not presently protect individuals on the basis of sexual orientation and/or gender identity. If adopted, the bar in Montana will have a higher standard, and many will argue appropriately so. While some Montana cities and towns have adopted non-discrimination ordinances others, such as Billings with the second largest bar in the state, have declined to do so. Rule 8.4(g,) if adopted, will create a potential disciplinary claim by an aggrieved associate for failure to promote based upon sexual orientation and/or gender identity, despite the absence of state (or local) remedies for the same.
Nationally, some critics have charged that the rule goes too far and may infringe upon free speech. Eugene Volokh, professor of law at UCLA and noted legal commentator is one of those who is critical of the rule. Of the ABA’s adoption of the rule, he writes, “My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.”
With the country perhaps more attuned to these issues in the wake of the 2016 presidential election and ongoing, high-profile sexual harassment scandals involving entities like Fox News, the Rule comes at a time when it might be expected to stir controversy. In reality, it likely will be adopted in Montana with little comment. Thus far, five members of the bar have provided comments in opposition to the change, and one suggesting changes to withstand legal challenge.
Additional comments to the Montana Supreme Court are due no later than December 9, 2016.