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Recent Developments in Legal Ethics Recent Developments in Legal Ethics Dane S. Ciolino Loyola University New Orleans College of Law 7214 St Charles Ave Campus Box 901 New Orleans, LA 70118 (504) 861-5652 [email protected] Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans School of Law. His principal scholarly and teach- ing interests include Legal Ethics,Trial Advocacy, and Evidence. Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and served as Editor in Chief of the Tulane Law Review. After graduating from law school, Prof. Ciolino worked as a law clerk for the United States District Court, Eastern District of Louisiana, and as an associate with Cravath, Swaine & Moore in New York City, and Stone, Pigman, Walther & Wittmann in New Orleans. Professor Ciolino has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as a chair- person of a Louisiana Attorney Disciplinary Board Hearing Committee, as a mem- ber of the Louisiana State Bar Association ("LSBA") Professionalism Committee, as a member of the LSBA Lawyer & Judicial Codes of Conduct Committee, as chairper- son of the United States District Court for the Eastern District of Louisiana Lawyer Disciplinary Committee and as a member of the LSBA Ethics Advisory Service. In addition to teaching at Loyola, Professor Ciolino represents lawyers and judges in disciplinary proceedings, and provides consultations on legal-ethics issues. His blog, Louisiana Legal Ethics, is at lalegalethics.org. Recent Developments in Legal Ethics Table of Contents I. Introduction ...................................................................................................................................................5 II. Recent Developments in Legal Ethics ...........................................................................................................6 Recent Developments in Legal Ethics ■ Ciolino ■ 3 Recent Developments in Legal Ethics I. Introduction Professor Ciolino will provide an update on current issues in legal ethics, including conflicts of inter- est that can arise in the representation of government entities and employees. We all know what a sticky wicket conflicts of interest can be in representation of governmental entities, and Professor Ciolino will lead a lively discussion that will assist those in attendance in resolving those issues in our everyday practice, as well as other ethical issues that arise in representation of governmental entities. Recent Developments in Legal Ethics ■ Ciolino ■ 5 II. Recent Developments in Legal Ethics Recent Developments in Legal Ethics Dane S. Ciolino ALVIN R. CHRISTOVICH DISTINGUISHED PROFESSOR OF LAW LOYOLA UNIVERSITY NEW ORLEANS COLLEGE OF LAW 6 ■ Civil Rights and Governmental Tort Liability ■ January 2017 Dane S. Ciolino Dane S. Ciolino serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans College of Law. His current scholarly and teaching interests at Loyola include Professional Responsibility, Evidence, Advocacy, and Criminal Law. Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and selected as Editor in Chief of the Tulane Law Review. After graduation, he clerked for the United States District Court, Eastern District of Louisiana, and practiced law at Cravath, Swaine & Moore LLP in New York City, and Stone Pigman Walther Wittmann LLC, in New Orleans. He has served as reporter to the Louisiana State Bar Association Ethics 2000 Committee, as chairperson of a Louisiana Attorney Disciplinary Board Hearing Committee, as Chair of the Lawyer Disciplinary Committee of the United States District Court for the Eastern District of Louisiana and as a member of various Louisiana State Bar Association committees including the Professionalism Committee, the Lawyer & Judicial Codes of Conduct Committee, and the Ethics Advisory Service Committee. His weblog, Louisiana Legal Ethics, is located at www.lalegalethics.org. Professor Ciolino engages in a limited law practice and in law-related consulting, principally in the areas of legal ethics, lawyer discipline, judicial discipline and federal criminal law. He represents clients in disciplinary matters before the Louisiana Supreme Court, the Louisiana Attorney Disciplinary Board, and the Louisiana Judiciary Commission. He also handles legal malpractice cases, lawyer disqualification motions and lawyer fee disputes. Finally, he consults and serves as an expert witness in the fields of legal ethics, legal fees and the standards of care and conduct governing lawyers. Professor Ciolino can be reached by telephone at (504) 975-3263, and by email at [email protected]. For additional biographical information, visit www.daneciolino.com. Prof. Ciolino’s legal ethics book, Louisiana Legal Ethics: Standards and Commentary (2016), is available for purchase at www.lalegalethics.org and at Amazon.com. Recent Developments in Legal Ethics ■ Ciolino ■ 7 ABA Adopts Broad Anti-Harassment Rule. lalegalethics.org/aba-adopts-anti-harassment-rule/ Dane S. Ciolino On August 8, 2016, the ABA House of Delegates amended Model Rule 8.4 to include a broad anti-discrimination and anti- harassment provision, and three revised comments. The amendment, which was sponsored by several ABA groups,1 added this new paragraph (g) to the black-letter of Rule 8.4: 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. See ABA Revised Resolution 109 (adopted Aug. 8, 2016). The three revised comments to Rule 8.4 provide as follows: [3] Discrimination and harassment by lawyers in violation of paragraph (g) undermines 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). [4] 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. 1/3 [5] A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b). It is often difficult to have a rational discussion about anti-discrimination and anti-harassment rule making. Some fervently believe that such provisions are yet another example of political correctness run a muck. Others just as fervently believe that such provisions serve to promote inclusiveness and confidence in the legal profession. Breadth of New Rule Irrespective of viewpoint, every lawyer should be concerned about the breadth of this new rule. First, the rule broadly defines “harassment” to include any “derogatory or demeaning verbal conduct” by a lawyer relating to a person’s “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” Even words that are not “harmful” meet the definition of “harassment” if they are “derogatory or demeaning” and relate to a designated category of person. Second, the rule subjects to discipline not only a lawyer who knowingly engages in harassment or discrimination, but also a lawyer who negligently utters a derogatory or demeaning comment. So, a lawyer who did not know that a comment was offensive will be disciplined if the lawyer should have known
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