Discriminatory Organizations: To Participate or Not To Participate?

In Opinion No. 1 of 2015, the Indiana State Bar Association Legal Ethics Committee addressed the extent to which Indiana Rule of Professional Conduct 8.4(g) limits a lawyer’s participation as a leader of a nonprofit organization that discriminates through membership requirements (e.g. on the basis of religion, gender, race, etc.). That rule prohibits lawyers from “engag[ing] in conduct, in a professional capacity, manifesting…prejudice” based upon certain types of characteristics. Several other states, including Florida, have an anti-discrimination clause in their professional conduct rules guiding attorneys.

The main hurdle with which the Committee struggled was the lack of guidance from the Indiana Supreme Court on the definition of “professional capacity.” The Committee first reviewed the six Indiana cases that have applied Rule 8.4(g) and then reviewed a number of cases in which lawyers were disciplined for conduct that was unrelated to the representation of a client. It found that although the rule encompasses conduct in the course of representing a client, the rule’s reach goes well beyond that.

Having established that the bounds of Rule 8.4(g) extend beyond actions taken in a representative capacity, the Committee next turned to the question of how far those boundaries go. After an analysis of both the New Jersey Supreme Court’s interpretation of its own version of Rule 8.4(g) and Indiana’s Model Code of Judicial Conduct, the Committee decided that the rule is meant to catch only such conduct where the lawyer’s status as a lawyer is a relevant part of his or her role and where the conduct was intended or likely to discriminate. Further, even in such cases, the attorney may still be protected from the rule’s application, depending on the nature of the organization. That is because, in some types of organizations, the constitutional freedom of association may apply. The Committee noted that typically, smaller, more intimate organizations have been afforded greater protections of associations, whereas organizations whose goals involve other recognized freedoms have been afforded such protections only in more stringent circumstances.

In short, the Committee concluded the following: (1) mere legal representation of such organizations—without making discriminatory comments—is not a violation of the rule; (2) participation in a personal capacity is not a violation of the rule; and (3) participation where status as a lawyer is connected to the participation and where the lawyer intends to personally participate in activities that advance discriminatory policies may be a violation of the rule, depending on the nature of the organization and the lawyer’s role in it.

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