On July 1, 2024, two significant amendments to the Illinois Rules of Professional Conduct (IRPC) addressing harassment and discrimination became effective.
The Illinois Supreme Court amended IRPC 8.4, which addresses lawyer misconduct, and IRPC 5.1, which addresses the responsibilities of partners, managers, and supervisory attorneys.
In this article, I share what Illinois lawyers need to know about these amendments and why they were proposed.
IRPC 8.4(j): past and present
Prior to July 1, 2024, IRPC 8.4(j) read as follows:
It is professional misconduct for a lawyer to: violate a federal, state or local statute or ordinance including, but not limited to, the Illinois Human Rights Act (775 ILCS 5/1 101 et seq.) that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer’s professional activities. No charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.
The amended IRPC 8.4(j), which is effective as of July 1, 2024, is as follows:
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 discrimination 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. This paragraph does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation. This paragraph does not preclude or limit the giving of advice, assistance, or advocacy consistent with these Rules.
IRPC 8.4(j) changes for lawyers to know
There are some significant changes to IRPC 8.4(j), including:
- The standard to prove misconduct is now what a lawyer “knows” or “reasonably should know” is harassment or discrimination.
- In addition to discrimination, harassment has been added to the Rule. Both harassment and discrimination are defined in 8.4(j) Comment [3A] as follows:
Discrimination means harmful verbal or physical conduct directed at another person or group that manifests bias or prejudice on the basis of any characteristics identified in paragraph (j). Harassment includes conduct directed at another person or group that is invasive, pressuring, or intimidating in relation to any characteristic identified in paragraph (j). It includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.
- There is no longer a requirement of a final and enforceable finding by a court or agency before charges of professional misconduct can be brought.
IRPC 5.1 amendments address responsibilities of firm leaders
The Illinois Supreme Court also amended Comment 2 of IRPC 5.1, to ensure partners, managers, and supervisory attorneys also take the revised 8.4(j) into account. According to IRPC 5.1, Comment [2]:
Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, promote a firm environment free of the harassment and discrimination prohibited by Rule 8.4(j), identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.
Going forward, partners, managers, and supervisory attorneys should review their policies and make sure such policies and procedures establish a work environment that is free of harassment and discrimination.
Purpose of IRPC 8.4(j) and 5.1 amendments
The proposed 8.4(j) and 5.1 rule changes were intended to be modeled after ABA Model Rule of Professional Conduct (MRPC) 8.4(g). The ABA adopted Rule 8.4(g) in 2016:
It is professional misconduct for a lawyer to: engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
In a November 8, 2023 letter to the Illinois Supreme Court Rules Committee, the ISBA states, “Few states have adopted the ABA Model Rule 8.4(g) verbatim, but in general, there is a movement among a number of states to address lawyer harassment and discrimination in a better and clearer way than before…”
A transcript of the November 15, 2023, Committee Public Hearing about the amendments and public comments regarding the proposal can be found on the Illinois Supreme Court’s website.
According to ABA records at the time of publishing this article, over 35 states have adopted rules similar to ABA MRPC 8.4(g) and three states are currently reviewing their rules that address issues raised in ABA MRPC 8.4(g).
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