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By: Greg Fayard
For decades, the California State Bar had an anti-discrimination ethics rule applicable to lawyers. That rule prevented lawyers from unlawfully discriminating in hiring, promoting, firing, or accepting or not accepting cases based on certain protected characteristics—the big ones that people thought about in the early 1990s: race, sex, religion, sexual orientation, national origin, disability. However, for the State Bar to get jurisdiction over a lawyer for being discriminatory, a court had to first find the lawyer engaged in unlawful discrimination.
That never happened, so this rule was never enforced.
The current discrimination ethics rule addresses the prior jurisdictional gap, and now confers original jurisdiction upon the Office of the Chief Trial Counsel of the State Bar of California to investigate and prosecute discrimination claims and make recommendations on disciplinary orders to the California Supreme Court. California’s ethics rule says lawyers shall not discriminate, harass, or retaliate in not taking a case, ending representation of case, or not hiring, or firing someone based on protected characteristics. These protected characteristics went from seven to 19 and now include genetic information, military status, veteran status, color, marital status, among others. There is no longer a requirement that a court first find the lawyer engaged in discrimination before this rule is triggered.
So in summary, rule of Professional Conduct 8.4.1, says a California lawyer cannot discriminate based on the 19 characteristics when:
As to a lawyer’s employees or potential employees, the lawyer cannot discriminate based on the 19 characteristics when:
If a lawyer is charged by the State Bar for violating this rule, the lawyer has to notify the California Department of Fair Employment and Housing, and the U.S. Department of Justice or federal Equal Employment Opportunity Commission of the disciplinary charge, depending on the type of charge. Given the breadth of civil state and federal discrimination law, this rule was controversial, passing the State Bar Board of Trustees and going to the California Supreme Court for approval on a 7 to 6 vote. In any event, civil liability is not the only penalty for the discriminatory lawyer. Now discriminatory California lawyers can be disciplined by the State Bar.
If you have any questions or would like more information, please contact Greg Fayard at email@example.com, or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at stage.fmglaw.com.