CBA Record July-August 2024

ness or conduct that was prejudicial to the administration of justice. Under the new language of Rule 8.4(j), it is professional misconduct for a lawyer to “engage in conduct in the practice of law that the lawyer knows or reasonably should know is harassment or discrimina tion on the basis of race, color, ancestry, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, military or veteran status, pregnancy, or socioeconomic status.” The new Rule further provides that it is not meant to and does not limit the ability of a lawyer to accept or decline representation of a client, and that it does not preclude a lawyer from giving legal advice or advo cacy consistent with the Rules. There is no longer a requirement that the lawyer’s conduct be the subject of a final court or administrative agency order. New Comments [3], [3A], and [3B] provide important guidance on how new Rule 8.4(j) should be interpreted and applied. This includes a caution that the Rules are rules of reason, noting that whether conduct is a violation of Rule 8.4(j) must be judged both in context and from an objectively reasonable perspec tive. The new Comments also include other important guideposts, including that a trial judge’s findings that peremp tory challenges were exercised on a dis criminatory basis does not alone establish a violation of Rule 8.4(j), and that Rule 8.4(j) does not limit lawyers from engag ing in conduct undertaken to promote diversity, equity, and inclusion efforts. While these changes seem (and are) sig nificant, the adoptions bring Illinois more into line with similar prohibitions adopted by other state supreme courts, brings our state much, much closer to the language in the ABA’s Model Rule 8.4(g).

PRACTICAL ETHICS BY TRISHA RICH New Anti-Harassment and Discrimination Language Adopted by Illinois Supreme Court O n May 30, 2024, the Illi nois Supreme Court entered a long-anticipated order making “promote a firm environment free of the harassment and discrimination prohibited by Rule 8.4(j).”

significant changes in Illinois Rule of Pro fessional Conduct 8.4(j) (Illinois’s version of the American Bar Association’s Model Rule of Professional Conduct 8.4(g)), along with a minor change to Comment [2] of IRPC 5.1. The changes to Rules 8.4(j) and 5.1 Comment [2] became effective July 1, 2024. While the Illinois Supreme Court had been considering such changes since 2016, when the ABA formally amended Rule 8.4(g) to include anti-harassment and anti-discrimination language, the issue was renewed more recently by the Illinois State Bar Associa tion. The ISBA drafted proposed changes for consideration, which The Chicago Bar Association and other bar organizations endorsed. After further consideration and a comprehensive public comment period, the Illinois Supreme Court adopted the proposed amendments to the Rules, which had not been updated since they went into effect in 2010. IRPC 5.1 Rule 5.1 in Illinois (as in the Model Rules) is titled Responsibilities of Part ners, Managers, and Supervisory Lawyers . It governs managing lawyers’ responsi bilities to ensure that those they supervise conform their behavior in ways that are consistent with the lawyer’s own respon sibilities under the Rules. The Supreme Court’s changes to Rule 5.1 are minor and, in fact, do not show up in the black letter of the Rule, but instead in Com ment [2], where the Court has added only one clause—that law firm policies should

The Supreme Court’s addition of this language to the Comment is meant to help readers (usually lawyers) understand how the Rules are to be used and applied. Here, the Court makes clear that managing law yers must take reasonable efforts to estab lish internal policies and procedures to ensure that the firm’s lawyers and personnel engage in behaviors that are consistent with the Rules—including the new Rule 8.4(j). IRPC 8.4(j) The much more substantial amendment appears in the black letter language of Rule 8.4(j) and Comments [3], [3A], and [3B], which have been entirely overhauled. Illinois’s earlier version of 8.4(j) provided that it was professional misconduct for a lawyer to “violate a federal, state, or local statute or ordinance… that prohibits dis crimination,” but included a requirement that no charge of professional conduct could be brought under Rule 8.4(j) “until a court or administrative agency of compe tent jurisdiction has found that the lawyer has engaged in an unlawful discrimina tory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.” This extra requirement—to say the least, atypical among U.S. jurisdictions—resulted in the Rule rarely being invoked in disciplinary matters. Instead, harassment and discrimi nation charges were often brought under Rule 8.4(b) or Rule 8.4(d), both of which provided more general enforcement lan guage related to the lawyer’s general fit

Trisha Rich is a commercial litigator and legal ethicist at Holland & Knight, the Secretary of the Chicago Bar Association, and the Past President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists.

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