Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Can’t I Run My Practice As I Want?

If that means does a lawyer have unfettered discretion to hire, promote or fire an employee, or take on or terminate a client, the answer is no. More importantly, the ethics rules may change—significantly.

Presently Rule of Professional Conduct 2-400 prohibits unlawful discrimination in managing or operating a law practice—or knowingly permitting it. The rule covers both hiring, promoting or discharging anyone, or taking on or terminating a client, based on race, national origin, sex, sexual orientation, religion, age, or disability. But the Rule, specifically 2-400(C), bars any State Bar disciplinary investigation or proceeding unless some other tribunal has first found the lawyer committed unlawful discrimination under state or federal law. Although the Supreme Court adopted Rule 2-400 in 1994, no lawyer has suffered discipline for violating it.

For the 50 other jurisdictions that have adopted some form of the ABA Model Rules, Rule 8.4(d) prohibits conduct “prejudicial to the administration of justice.” Comment 3 to that rule includes as a violation of the rule bias in word or conduct, related to the typical classifications, when prejudicial to the administration of justice. But the comment, itself a compromise after six years of proposals and counterproposals, is not authoritative and, importantly, not a part of the rule itself.

Change may be in the offing. On December 22, 2015, the ABA Standing Committee on Ethics and Professional Responsibility proposed amending Rule 8.4 expressly to state that it is professional misconduct for a lawyer, in conduct related to the practice of law, knowingly to harass or discriminate against anyone on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status.  A proposed comment to the new rule (Rule 8.4(g)) states that it does not apply to conduct outside the practice of law, or which the First Amendment protects.

Meanwhile, California’s Second Commission for the Revision of the Rules of Professional Conduct (RRC2) is presently considering changes to Rule 2-400 (to be renumbered Rule 8.4.1) that would eliminate the provision that bars discipline until another tribunal has found the lawyer has engaged in unlawful discrimination.

Another proposal suggests including the following in the revised California rule:

In the management and operation of a law practice and in order to understand and properly protect and promote the public interest, members must engage in and promote a diverse and inclusive legal profession and practice. A diverse, inclusive and nondiscriminatory legal profession can be created and maintained through community engagement, strategic partnerships, education on access, fairness and the elimination of bias and by supporting a practice that reflects and is representative of the public and client community to be served. [Emphasis added.][1]

Some have commented that ethics discipline rules need not address social issues where avenues for civil redress already exist. Others counter that conduct for which there is a civil remedy—e.g., conversion of a client’s property—is also grounds for professional discipline and further, that, as a largely self-governing profession, the Bar owes it to itself to make clear that the conduct of its members must adhere to the public policy standards that affect everyone.

However these proposed ethics changes may fare, the practice of law could be quite different as a result. Any lawyer who wants to be heard has the opportunity. The RRC2 continues to invite public comment to proposed rule changes. See ethics.calbar.ca.gov.

The ABA Committee will hold a public meeting in San Diego on February 7, 2016 from 3:00 to 5:00 p.m. at the Marriott Marquis San Diego Marina to discuss its proposed rule change. One can register to speak atabamodelruleamend@americanbar.org.


[1]  Suggested by the State Bar’s Council on Access and Fairness.

-- Edward McIntyre


**No portion of this summary 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.**