PBA President Issues Statement Supporting Professional Rule Change That Expands Lawyer Misconduct to Address Knowing Harassment and Discrimination

Harrisburg (July 26, 2021) – Pennsylvania Bar Association President Kathleen D. Wilkinson issued the following statement concerning the Supreme Court of Pennsylvania’s adoption of an amended rule treating knowing harassment and discrimination in the practice of law as misconduct under the Rules of Professional Conduct.

“The Pennsylvania Bar Association applauds the Supreme Court of Pennsylvania’s approval of the Disciplinary Board’s recommendation to include a prohibition in the Pennsylvania Rules of Professional Conduct clearly stating that it is professional misconduct for a lawyer to ‘knowingly’ engage in harassment or discrimination based upon race, gender, religion, disability, and other protected characteristics.

The rule includes helpful commentary explaining that the rule addresses conduct in the practice of law, including interaction with witnesses, coworkers, court personnel, lawyers or others, as well as participation on judicial boards, continuing legal education seminars, and bench bar conferences. The terms ‘harassment’ and ‘discrimination’ are also now defined in the comments, along with a limitation excluding application of the rule in certain circumstances that might present First Amendment concerns.

In 2016, the PBA House of Delegates expressed support for the adoption of a prohibition of knowing harassment and discrimination in the practice of law, proposed by the PBA’s Commission on Women in the Profession and co-sponsored by the Legal Ethics and Professional Responsibility Committee, among other committees and sections. In June of last year, the Supreme Court adopted a version of Rule 8.4(g) that was later challenged in federal court, resulting in a December 2020 ruling enjoining the enforcement of the rule when it was slated to go into effect. The Disciplinary Board appealed that ruling, and in March of this year, withdrew that appeal with the intention to propose an amended rule taking the district court’s ruling into account. In the meantime, several other states have moved forward with anti-discrimination rules.

The PBA and other bars have consistently supported efforts by the Disciplinary Board to amend the misconduct rule to prohibit serious acts of bias, prejudice, harassment and discrimination in the practice of law. Therefore, we commend the Disciplinary Board and the Supreme Court for acting promptly and deliberately in amending the existing misconduct rule so as to provide a meaningful disciplinary avenue for misconduct that should no longer be tolerated in the practice of law.” 

Founded in 1895, the Pennsylvania Bar Association strives to promote justice, professional excellence and respect for the law; improve public understanding of the legal system; facilitate access of legal services; and serve the lawyer members of the state’s largest organized bar association.