Joint Committee on Attorney Standards
North Dakota Supreme Court
600 E Boulevard Ave Dept 180
Bismarck, ND 58505-0530
Phone: (701) 328-2689
Fax: (701) 328-4480
Hon. Ralph R. Erickson, Chair
PO Box 2806
Fargo, ND 58108-2806
Phone: (701) 241-5680
Fax: (701) 241-5709March 30, 2000
Chief Justice Gerald W. VandeWalle
North Dakota Supreme Court
First Floor Judicial Wing
600 E Boulevard Ave Dept 180
Bismarck, ND 58505-0530
Dear Chief Justice VandeWalle:
The Joint Committee on Attorney Standards recently submitted to the Supreme Court proposed amendments to Rule 8.4, Rules of Professional Conduct, which would have identified manifestations of bias as a form of lawyer misconduct. The Supreme Court then requested comment on the proposed amendments. In response to the comments received, the Supreme Court referred the proposed amendments back to the Committee for further consideration and production of a comprehensive report. See Attachment A, Letter dated October 25, 1999, from Penny Miller. At its March 23, 2000, meeting the Committee voted to resubmit the proposed amendments, with one minor adjustment, to the Supreme Court, along with this lengthier summary of the Committee's activities with respect to development of the proposed amendments. The proposed amendments are included as Attachment B.
During its consideration of issues concerning bias as a form of lawyer misconduct, the Committee reviewed information from several sources, all of which are included as Attachments later identified in this letter. The Committee reviewed Canons 3B(5) and (6) of North Dakota's Code of Judicial Conduct. The Committee received presentations on the findings of the Supreme Court's Commission on Gender Fairness in the Courts and reviewed that part of the Commission's Final Report pertaining to professional conduct in the courtroom. The Committee reviewed rule proposals and reports considered by the American Bar Association, which also considered some of the constitutional deficiencies alleged in various comments received by the Supreme Court. The Committee also reviewed rules identifying discriminatory and biased conduct as a form of lawyer misconduct which have been adopted in eighteen states and the District of Columbia.
Biased Conduct and the Code of Judicial Conduct
Canon 3B(5) of the Code of Judicial Conduct provides that a judge, in the performance of judicial duties, shall not "by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status... ." Canon 3B(6) of the Code of Judicial Conduct provides that a judge "shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct" similar forms of bias. These ethical provisions are included as Attachment C. The issue initially considered by the Committee concerned the ethical obligation imposed on judges to control biased conduct by lawyers and the absence of a concomitant ethical obligation for lawyers to refrain from biased conduct. The Committee considered it centrally important that lawyers and judges respond to similar ethical imperatives, imposed by their respective ethical codes and rules. In developing the proposed amendments, the Committee presumed the constitutionality of Canons 3B(5) and (6) of the Code of Judicial Conduct, as duly adopted by the Supreme Court, and patterned the proposed addition to Rule 8.4 of the Rules of Professional Conduct after these provisions. The Committee is unaware of any constitutional challenges to Canons 3B(5) and (6) in North Dakota or in any other jurisdiction that has adopted similar provisions. It should also be noted that Canons 3B(5) and (6) are verbatim replications of Canons 3B(5) and (6) of the ABA Model Code of Judicial Conduct, which have been retained in the recently released 2000 Edition of the Model Code.
While related to the issue of lawyer discipline, it is interesting that the ABA Standing Committee on Ethics and Professional Responsibility, in developing its proposed amendments to Rule 8.4, observed in its Report that "the description already adopted by this House in the Model Code of Judicial Conduct will best effectuate the policy that was adopted by the Association to discourage this type of misconduct by lawyers." The Standing Committee's proposal incorporated verbatim the language of the Model Code of Judicial Conduct in the Comment to Rule 8.4 as an example of lawyer conduct that was considered prejudicial to the administration of justice. The Standing Committee's proposal, however, was not ultimately adopted by the House of Delegates. The Standing Committee's Report and proposal and other ABA information reviewed by the Committee is included as Attachment D.
Rules in Other Jurisdictions
Rules prohibiting discriminatory or biased conduct by lawyers have been adopted in eighteen states and the District of Columbia. Many of these states have adopted such rules as the result of recommendations made by state task forces and commissions that studied the presence and impact of gender, race, and ethnic bias in the judicial process. As a prelude to its review of rules adopted in other states, the Committee received presentations concerning the findings of the Supreme Court's Commission on Gender Fairness in the Courts and reviewed the portion of the Commission's Final Report analyzing professional conduct in the courtroom. That portion of the Final Report is included as Attachment E. The Commission's Report demonstrated, as other reports did in states that ultimately adopted bias-related rules, that bias based on gender poses significant issues concerning lawyer conduct and the fairness, both perceived and real, of the judicial process. The Committee was also aware of numerous task force reports that detail the impact on the judicial process of racial, ethnic, and other forms of bias.
While rules adopted in other states have the common theme of barring lawyer conduct that is discriminatory or biased, the rules take different approaches in achieving that objective. The rules adopted in other jurisdictions are included as Attachment F. Some state rules prohibit unlawful discrimination by lawyers generally, or specifically with respect to employment or law office practices. See, e.g., California, District of Columbia, Florida, Illinois, Minnesota, New Jersey, New York, Ohio, Vermont, and Washington. Some state rules, similar to the proposed amendments to Rule 8.4, prohibit manifestations of bias on the basis of race, ethnicity, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. See, e.g., Colorado, Massachusetts, Missouri, and Texas. And even some states that prohibit "unlawful discrimination" enumerate similar kinds of prohibited bias. See, e.g. California, District of Columbia, Florida, New Jersey, and Ohio. State rules differ also concerning whether it must be shown that the lawyer "intentionally" or "knowingly" engaged in discriminatory or biased conduct. New Jersey, for example, identifies conduct "intended or likely to cause harm." Colorado's rule applies to conduct "intended to appeal to or engender bias." Florida prohibits discriminating "knowingly, or through callous indifference." Most of the state rules, however, are silent on this issue. The proposed amendments to Rule 8.4 do not include such a requirement and follow Canons 3B(5) and (6) of the Code of Judicial Conduct in that regard. The proposed amendments to Rule 8.4 would apply to manifestations of bias "in connection with a judicial or administrative proceeding." Some state rules have a similar focus, others have a more expansive approach. Minnesota's rule applies in part to harassment "in connection with professional activities". Missouri's rule, which is similar in other respects to the proposed amendments, applies to biased conduct while "representing a client". And Ohio prohibits discriminatory conduct while acting in a "professional capacity." The proposed amendments also include an exception for allegedly biased conduct that is considered "legitimate advocacy", as does Canon 3B(6) of the Code of Judicial Conduct. Most of the state rules, however, do not contain such an exception.
This short summary of rule provisions in other jurisdictions demonstrates the varied approaches adopted to address bias or discrimination as a kind of lawyer misconduct. The amendments proposed by the Committee bear some resemblance to these rules, but differ in not going as far as some while going further than others. The Committee is unaware of any constitutional challenges, successful or otherwise, to the rules described in this letter.
Bias, Lawyer Discipline, and Free Speech
This letter is not intended as a legal brief refuting the alleged constitutional deficiencies of the proposed amendments expressed in the various comments. However, this letter is intended to illustrate points of departure between the Committee's understanding of the purpose and application of the proposed amendments and the characterization of the amendments by some of the comments. Additionally, the Committee would commend to the Supreme Court for review the comment submitted by Michael J. Mullen, which carefully assesses the issues and caselaw concerning bias, lawyer discipline measures, and the First Amendment.
Many of the comments submitted to the Supreme Court identify numerous court decisions generally discussing the importance of free speech and application of the First Amendment, which are interesting but inapposite if cited for the general proposition that the speech rights of lawyers may not be limited in any way. The U.S. Supreme Court has, on several occasions, considered the First Amendment implications of state regulations of lawyer speech. It has upheld restrictions on lawyer speech in some cases, rejected restrictions in others. Compare, Bates v. State Bar of Arizona, 433 U.S. 350 (1977)(invalidating the blanket suppression of attorney advertising as violative of the First Amendment), with Gentile v. State Bar, 501 U.S. 1030 (1991)(recognizing appropriateness of restrictions on lawyer commentary to the press during pending trials), and Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)(upholding restriction on direct mail solicitation as permissible under the First Amendment). Chief Justice Rehnquist's opinion for the Court in Gentile is particularly noteworthy in its discussion of the difference between restraints on the free speech rights of the press and free speech rights of lawyers. Gentile v. State Bar 501 U.S. 1030, 1062-1081. The opinion illustrated clearly the different status of lawyers with respect to First Amendment analysis:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed.
. . . . .
Even outside the courtroom, a majority of the Court in two separate opinions in the case of In re Sawyer . . . observed that lawyers in pending cases were subject to ethical restrictions on speech which an ordinary citizen would not be.
Id. at 1071 (citations omitted).
The Court found that the Nevada ethical restrictions at issue in Gentile were valid restrictions on lawyer commentary to the press during a pending trial because, in demonstrating a "substantial likelihood of material prejudice" to the trial, the restrictions were "designed to protect the integrity and fairness of the State's judicial system." Id. at 1075. The Court described the restrictions as "aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire . . . " and asserted that '[f]ew, if any, interests under the Constitution are more fundamental than the right to a fair trial by "impartial" jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.' Id. The opinion concluded that the Nevada restrictions on lawyer speech were "narrowly tailored to achieve those objectives." Id.
Those objecting to ethical restrictions barring manifestations of bias by lawyers often cite the U.S. Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377(1992), which invalidated a St. Paul hate speech ordinance on the grounds that it engaged in unacceptable content and viewpoint discrimination. The ordinance prohibited words that were insulting or provoked violence on the basis of race, color, creed, religion, or gender. Id. at 391. However, in rejecting the St. Paul ordinance, the Court noted three circumstances in which a content-based restriction would be acceptable: where there is no threat that the restriction will drive certain ideas from the marketplace, where the proscribed speech is associated with secondary effects that support the restriction without reference to the content of the speech, and where speech is incidentally affected by a restriction aimed at conduct. Id. at 387-390. Lawyer conduct manifesting bias in connection with a judicial or administrative proceeding cannot be described as speech occurring in the marketplace of ideas. Under the proposed amendments, a lawyer would be free to express biased opinions in almost any other venue or setting. It is also clearly arguable that the proposed amendments to Rule 8.4 are aimed at conduct rather than the content of speech. The focus of the proposed amendments is verbal conduct intended to manipulate the judicial process such that jurors, witnesses, or parties to litigation are motivated to act in a way other than they would if the process were fair. The Final Report of the Commission on Gender Fairness in the Courts and numerous other reports illustrate at length the use of bias as a "litigation tactic" designed to gain unfair advantage or intimidate witnesses or opposing counsel. The exchange of ideas is not the point. Additionally, if "speech" is, in fact, at issue, there are several identifiable "secondary effects" of manifestations of bias that justify restrictions that would incidentally affect speech rights of lawyers. Some were identified by the U.S. Supreme Court in Gentile: unfairly influencing the outcome of a trial or prejudicing the jury venire. Other secondary effects properly the concern of ethical restrictions on manifestations of bias include dissension within the legal community and lack of public confidence in the judicial system. These concerns for the institutional integrity of the judicial process, in which lawyers participate as officers of the court, have formed the basis for the imposition by courts of sanctions for biased conduct and speech by lawyers. Notable examples are summarized below.
In Principe v. Assay Partners, 586 N.Y.S.2d 182 (Sup.1992), the court considered a situation in which a lawyer referred repeatedly to opposing counsel during depositions as "little lady", "little girl", and "young girl". Id. at 184. The court characterized these comments as "a paradigm of rudeness" which "condescend, disparage, and degrade a colleague upon the basis that she is female." Id. The court further asserted:
The condemnation of such improper remarks springs from a growing recognition of the seriousness of gender bias and that bias of any kind cannot be permitted to find safe haven in the practice of law or in the workings of the courts and the judiciary.
. . . .
While the conduct here falls under the heading of sexist, the same principle applies to any discriminatory conduct involving the variations to which human beings are subject, whether it be
religion, sexual orientation, physical condition, nationality, or any other difference.
Id. at 185 (emphasis added).
The federal bankruptcy court of the eastern district of California responded similarly in In re Plaza Hotel Corp, 111 B.R. 882 (Bkrtcy. E.D. Cal. 1990). The court was faced with a determination of whether counsel was qualified to assist a debtor in performing its duty to cooperate with the trustee. The court found that counsel exhibited an unwillingness to assist the debtor effectively through expressions of gender bias toward the woman who represented the Unites States Trustee. Id. at 891-892. Counsel often referred to the woman as "office help"even though he knew the woman was a lawyer. The court observed:
Gender-biased remarks are unworthy of counsel who appear in federal court, interfere with the orderly conduct of federal litigation in the atmosphere of equal justice, and are as sanctionable as the casting of racial or ethnic epithets and slurs among counsel.
Id. at 892.
In Mullaney v. Aude, 730 A.2d 759 (Md.App.1999), the Maryland Court of Special Appeals upheld sanctions (attorney fees and a protective order) against a lawyer who made derogatory comments ("babe" and "bimbo") to opposing female counsel during a deposition. The court observed that '[s]ome attorneys engage in activity undermining another attorney's case by using gender. This strategy has been aptly termed "sexual trial tactics."' Id. at 767 (citation omitted). The court characterized counsel's remarks as 'a crass attempt to gain an unfair advantage through the use of demeaning language, a blatant example of "sexual [deposition] tactics."' Id. The court further explained:
If Mr. Harris, by use of such tactics can evoke in Ms. Green any emotional response that puts her off-balance, makes her defensive, makes her feel inadequate, or just plain angry and distracted, he has succeeded with his strategy.
. . . .
Fortunately, however, we have long passed the era when bias relating to sex, race, religion, or other specified groups is considered acceptable as a litigation tactic.
Id. at 769 (emphasis added).
It is the Committee's considered judgment that the purpose and application of the proposed amendments to Rule 8.4 of the Rules of Professional Conduct is to serve the important objectives identified by these various courts. The Committee is unaware of, and research did not disclose, constitutional challenges, successful or otherwise, to similar rules. The proposed amendments underscore the importance of securing and maintaining the integrity of the judicial process and the administration of justice and the vital role lawyers, as officers of the court, have in that effort.
If you have further questions concerning the Joint Committee's work and proposal, do not hesitate to contact me.
Ralph R. Erickson, Chair
Joint Committee on Attorney Standards
cc: Justices of the Supreme Court
Penny Miller, Clerk of the Supreme Court