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Legal Ethics

ABA Model Rule 8.4 - Event Audio/Video

2017 National Student Symposium
Eugene Volokh, Robert N. Weiner, Lavenski Smith March 15, 2017

In August 2016, the American Bar Association (ABA) added new anti-discrimination guidelines for lawyers to its Model Rules of Professional Conduct through section 8.4. This section now binds lawyers to adhere to particular speech codes in the many states that have adopted it.

The provision labels engagement “in conduct that [a] 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." The ABA has defined discrimination and harassment to include “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 conduct guidelines extend to “the practice of law," including, “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and other 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."

Some have described this section as infringing on the rights on lawyers to speak their mind, while others have argued it is necessary to prevent discrimination within the profession. This debate will discuss the implications of Model Rules of Professional Conduct 8.4 and its impact on workplace discrimination and lawyers' rights.

This debate was presented at the 2017 National Student Symposium on Saturday, March 4, 2017, at Columbia Law School in New York City, New York.

Debate: ABA Model Rule 8.4
11:15 a.m. -12:30 p.m.
Jerome Greene Hall 104

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Mr. Robert N. Weiner, Partner, Arnold & Porter Kaye Scholer LLP
  • Moderator: Hon. Lavenski Smith, U.S. Court of Appeals, 8th Circuit

Columbia Law School
New York, New York

Government Ethics and Corruption - Event Audio/Video

2017 Annual Florida Chapters Conference
Nick Cox, Renee Flaherty, Todd P. Graves, Matthew Stephenson, Susan Rothstein-Youakim, Jefferson P. Knight February 10, 2017

This panel, Government Ethics & Corruption, was held on February 4, 2017, at the 2017 Florida Chapters Conference at Disney's BoardWalk Inn at the Walt Disney World® Resort in Lake Buena Vista, Florida.

Government Ethics and Corruption
10:30 a.m. – 12:00 Noon

  • Mr. Nick Cox, Florida Statewide Prosecutor
  • Renee Flaherty, Institute for Justice
  • Todd Graves, Graves Garrett
  • Prof. Matthew Stephenson, Professor of Law, Harvard Law School
  • Moderator: Judge Susan Rothstein-Youakim, Florida Second District Court of Appeal
  • Introduction: Jefferson Knight, Owner, The Knight Law Firm

Disney's Boardwalk Inn
Lake Buena Vista, FL

Presidential Conflicts? - Podcast

Practice Group Podcast
Richard W. Painter, David B. Rivkin Jr. December 12, 2016

“Suggestions that President-elect Donald Trump put his business holdings in a 'blind trust,' which would mean selling them to avoid potential conflicts of interest are unrealistic and unfair,” says David Rivkin, of Baker and Hostetler, in a recent Washington Post piece. University of Minnesota Law School Professor Richard Painter said, in a New York Times piece, that President-elect Trump’s announced plans to cure conflict-of-interest concerns are “not enough.” Join us as these two legal scholars discuss their positions in greater detail.

Featuring:

  • Professor Richard Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
  • Mr. David B. Rivkin Jr., Partner, BakerHostetler

Using Judicial Processes for Political Purposes - Event Audio/Video

2016 National Lawyers Convention
Arthur D. Hellman, Patrick Morrisey, Patrick A. Parenteau, Kimberley A. Strassel, Steven Colloton, John J. Park, Jr. November 24, 2016

“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of. 

Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted. 

Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages. 

Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud. 

Are these actions appropriate uses of the judicial process? 

What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law? 

It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment?

Professional Responsibility & Legal Education: Using Judicial Processes for Political Purposes
11:00 a.m. – 12:30 p.m. 
Chinese Room

  • Prof. Arthur Hellman, Professor of Law, Sally Ann Semenko Endowed Chair, University of Pittsburgh School Law
  • Hon. Patrick Morrisey, Attorney General, West Virginia
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
  • Ms. Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game: How the Left is Silencing Free Speech
  • Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit
  • Introduction: Mr. Jack Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

The Mayflower Hotel
Washington, DC

Ethics CLE Teleforum -- 2016: Recent Developments Impacting the Ethical Practice of Law - Podcast

Professional Responsibility & Legal Education Practice Group Podcast
W. William Hodes, Ronald Rotunda, Thomas D. Morgan September 16, 2016

Our panel of three experts in legal and judicial ethics discussed several recent cases and regulatory developments in the field, with an eye to translating these developments into practical wisdom about their likely impact on law practice in 2016 and beyond.

Topics included the American Bar Association's move to expand the scope of the regulation of race, gender and other harassment and discrimination into the practice of law generally, including law firm management; amendments to the rules of discovery to help reduce the gamesmanship now often infecting the process; the extent to which the Supreme Court's decision in the North Carolina Dentists case may foreshadow limitations on the ability of states to regulate the practice of law without running afoul of the antitrust laws; whether competent legal advice must include a business advice component in certain settings; and how the use of social media to complain about a sitting judge can cross the line into unethical conduct.

Featuring:

  • Prof. W. William Hodes,Professor Emeritus of Law, Indiana University & President, The William Hodes Professional Corporation
  • Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School  
  • Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law