Q: What does new Rule of Professional Conduct 8.4(i) say?

A: It is professional misconduct to “engage in conduct the lawyer knows or reasonably should know constitutes sexual harassment where the conduct occurs in connection with the lawyer’s professional activities.”

Q: Is there a Court-approved comment to the rule?

A: Yes. “Sexual harassment may include, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that a reasonable person would perceive as unwelcome. The substantive law of employment discrimination, including anti-harassment statutes, regulations, and case law, may guide, but does not limit, application of paragraph (i). ‘Professional activities’ are not limited to those that occur in a client-lawyer relationship.”

Q: When did it take effect?

A: September 19, 2019.

Q: What conduct is covered by the reference to a lawyer’s professional activities?

A: The comment does not provide an exhaustive list, but the Office of Attorney Regulation Counsel (“OARC”) interprets it to apply to any context in which a lawyer is acting as a lawyer. That can include, but may not be limited to: conduct at a law firm or workplace; conduct aimed at clients or potential clients; conduct directed toward opposing counsel or co-counsel or their staff; conduct directed toward court personnel or court reporters; or conduct occurring in firm- or bar-sponsored activities or at a CLE event.

Q: What constitutes sexual harassment?

A: Pursuant to the Court’s adopted comment, OARC will analyze the nature of the conduct in light of the substantive law around sexual harassment. However, Rule 8.4(i) does not require proof that an adverse employment action occurred due to the harassment.

Q: How will OARC handle sexual harassment cases?

A: OARC will employ the same tools it uses in addressing other complaints about lawyers, including the possibility of requiring a lawyer to take an educational class or placing a lawyer into a diversion program. OARC anticipates that it may pursue public discipline where there is clear and convincing evidence that a lawyer’s conduct is particularly egregious, analyzing factors such as the harm caused, whether it involved physical contact, and the number of occasions involving the conduct.

Q: Can someone complain anonymously about a lawyer’s sexual harassment?

A: No. While a complainant can ask the Presiding Disciplinary Judge for a protective order, OARC cannot unilaterally withhold the identity of the complainant from a lawyer.

Q: Can someone complain about a lawyer’s conduct that occurred before September 19, 2019?

A: Yes. The conduct still might implicate other Rules of Professional Conduct, depending on the nature of the conduct, to whom it was directed, and the impact it had.