October 2016

A Question of Bias

By Eric Deitz

Gordon Rees Scully Mansukhani, LLP

The current presidential campaign has served up its share of statements and attitudes offensive to many, whether by the candidates or their campaign staff.  The comments in question have resulted in unwanted scrutiny for both campaigns.

Closer to home, the San Diego Union-Tribune recently reported the California Commission on Judicial Performance has charged San Diego Superior Court Judge Gary Kreep with misconduct for, among other things, remarks he has made while on the bench. One example cited by the newspaper: while discussing a prostitution case in 2013, Judge Kreep allegedly said: “Speaking of prostitution, here’s Ms. Westfall,” after City Attorney Karolyn Westfall entered Judge Kreep’s courtroom.

In a second incident, also from 2013, Judge Kreep asked Deputy Public Defender Leticia Hernandez if she was a citizen of Mexico. After Hernandez replied she is a U.S. citizen, Kreep allegedly said: “I wasn’t planning on having you deported,” according to an excerpt of the court transcript in the complaint.

These incidents should serve as reminders to all associated with the legal profession of the need to consider our own implicit biases when addressing and interacting with others. In an effort to address questions of bias and discrimination by California lawyers, the Second Commission for the Revision of the Rules of Professional Conduct has proposed Rule 8.4.1 to the Rules of Professional Conduct.

Proposed Rule 8.4.1 is based upon existing rule 2-400, but expands its scope to prohibit unlawful discrimination based upon any protected characteristic or for the purpose of retaliation. For purposes of this proposed rule, “protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived race, national origin, sex, gender, sexual orientation, religion, age or disability. The full text of proposed Rule 8.4.1 may be found here.

Two versions of proposed Rule 8.4.1 were presented for public comment until the end of September. Alternative 1, or “ALT1,” is the commission's recommended version of the proposed rule.

In addition to extending the prohibition on discrimination or harassment beyond the management or operation of a law firm, and adding additional protected categories and enlarging the rule to encompass retaliation, ALT1 also eliminates the current rule's requirement of a final civil determination of wrongful discrimination before a disciplinary investigation may commence or discipline may be imposed.

The second alternative (“ALT2”), which the commission did not approve, requires a pre-adjudication finding of wrongful discrimination, a precondition criticized by a number of commentators.

If either alternative is approved by the State Bar Board of Trustees, with a decision expected by March 2017, proposed Rule 8.4.1 will then be submitted to the California Supreme Court. If adopted by the Court, proposed Rule 8.4.1 of the Rules of Professional Conduct will follow closely on the heels of ABA Model Rule 8.4(g), which the ABA House of Delegates adopted at its annual meeting on August 8, 2016. As reported by the ABA in September, 25 jurisdictions have already adopted an anti-discrimination provision in their black letter Rules of Professional Conduct.

ABA Model Rule 8.4, as adopted, provides:

It is professional misconduct for a lawyer to:

(g) 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.

Both proposed Rule 8.4.1 and ABA Model Rule 8.4(g) are intended to balance practitioners’ concerns with operating a business free of excessive governmental oversight and input with fundamental public policy concerns regarding access to justice. As the commission observed in Comment [1] to proposed Rule 8.4.1, “[c]onduct that violates this Rule undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal.”

The Commission further noted: “this Rule imposes on all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its other lawyers or nonlawyer personnel.” While alleged victims of any conduct prohibited by proposed Rule 8.4.1 are not required to advocate for corrective action, such an expectation will extend to other California lawyers if the rule is adopted as written.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**