Law and Arbitration Offices of Donald T Ryce

          The question arises whether the legal ramifications of employment disputes spill over to ethical considerations as well.  There are at least two possible grounds for raising ethical claims regarding illegal acts in the workplace.

A.        Rule 4-8.4(d), Rules of Professional Conduct

            One Rule potentially implicated by discriminatory conduct is Rule 4-8.4(d), Rules of Professional Conduct, providing that a lawyer shall not “engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.”

            The above language, adopted by the Florida Supreme Court in 1993, was proposed “because studies by the Florida Supreme Court Racial and Ethnic Bias Study Commission and the Florida Supreme Court Gender Bias Study Commission identified a number of problems faced by minorities and women in the legal profession. After reviewing the findings of the study commissions, both the Bar and the individual members recognized the need for specific rules prohibiting discriminatory practices by members of the Bar.”  The Florida Bar Re: Amendments to Rules Regulating The Florida Bar, 624 So.2d 720, 721(Fla.1993).

            The court’s discussion of the proposed rule suggests that primary focus of the “discrimination” language was on inappropriate statements reflecting bias on the speaker’s (or writer’s) part.  Thus, there was considerable discussion of First Amendment rights in the context of the special responsibilities placed on attorneys.  Id. (“Lawyers, because of their unique role in administering justice, in some instances are subject to ethical constraints that can burden their constitutional rights of free speech.”).

            Although the Florida Supreme Court has ruled that Rule 4-8.4(d) applies only when the potential offender is “engage[d] in conduct in connection with the practice of law,” The Florida Bar v. Brake, 767 So.2d 1163, 1166 (Fla. 2000) (“[R]ule 4-8.4(d) represents an exception to the general rule and applies only when a lawyer engages in misconduct while employed in a legal capacity”), the court has applied that concept very broadly.  (“[C]ontrary to Frederick 's suggestion that rule 4-8.4(d) applies only to conduct ‘in a judicial proceeding,’ the rule itself more broadly provides that it applies to ‘conduct in connection with the practice of law.’ This Court has recognized that ‘[w]hile conduct that actually affects a given proceeding may be prejudicial to the administration of justice, conduct that prejudices our system of justice as a whole also is encompassed by rule 4-8.4(d).’”).  The Florida Bar v. Federick , 756 So.2d 79, 86-87 (Fla. 2000).  It is likely that Rule 4-8.4(d) is potentially applicable anytime an attorney is acting in the capacity of a lawyer, regardless of whether the attorney is providing legal services at the time.    

        Nevertheless, despite the need to address discriminatory practices by members of the bar referred to by the Florida Bar and the court, Rule 4-8.4(d) cannot be read as generally governing employment issues.  In addition to proposed Rule 4-8.4(d), the Florida Bar proposed a rule establishing a procedure for raising an ethics violation whenever a court or administrative agency made a final determination that an attorney had committed a prohibited discriminatory practice and all appeals had been exhausted.  A group of individual lawyers proposed a competing rule simply prohibiting various forms of discrimination.  The Florida Supreme Court rejected both proposed rules, citing several different reasons:  (1)  the “Court's constitutional authority over the courts of Florida and attorney admission and discipline does not extend to the employment practices of lawyers. See Art. V, §§ 2(a), 15, Fla. Const.;” (2) “federal and state statutes already provide the mechanism for addressing employment discrimination;” (3) the proposed rules would “require the Bar to investigate employment discrimination claims without any clearcut standards of what constitutes a violation;” (4) the Bar’s “role would be duplicative of that served by the Florida Commission on Human Relations;” and (5) “the Bar has neither the expertise nor the resources to undertake the massive investigatory and disciplinary effort that would be necessary to accomplish the objectives of the proposal.” It is the author’s opinion that the somewhat conflicting history and purposes of Rule 4-8.4(d) will be resolved by not applying its prohibitions to run-of-the-mill employment disputes, but only to egregious discriminatory actions containing an element of abusive or hateful verbal or written conduct (e.g., the use of the “N-“ word).  However, to date no case has been decided clarifying this matter.

B.        Rule 3-4.3, Rules Regulating the Florida Bar (“Della-Donna” rule)

            In The Florida Bar v. Della-Donna, 583 So.2d 307 (Fla. 1989), the court held that the Bar’s rules and professional ethics apply generally to lawyers – even when they are not acting as an attorney at the time.  The court concluded:  “Conduct while not acting as an attorney can subject one to disciplinary proceedings … Even in personal transactions and when not acting as an attorney, attorneys must ‘avoid tarnishing the professional image or damaging the public.’  The practice of law is a privilege which carries with it responsibilities as well as rights.  That an attorney might, as it were, wear different hats at different times does not mean that professional ethics can be ‘checked at the door’ or that unethical or unprofessional conduct by a member of the legal profession can be tolerated.” 583 So.2d at 310.

            The Florida Supreme Court has commented that “[t]he general rule espoused in Della-Donna is expressly stated in Rule of Discipline 3-4.3.”  Rule 3-4.3 is a sweeping rule providing that misconduct can come in a wide variety of forms:  “The standards of professional conduct to be observed by members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-conclusive  nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof.  The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony of misdemeanor, may constitute a cause for discipline.”

            The term “any act that is unlawful or contrary to honesty and justice” is broad enough to encompass at least some kinds of illegal employment practices.  But see The Florida Bar v. Taylor, 648 So.2d 709 (Fla. 1995) (“Present disciplinary rules do not grant Supreme Court authority to discipline attorney for failure to meet civil obligation such as child support absent finding of fraudulent or dishonest conduct;” distinguishing civil contempt from criminal contempt). 

            In any event, disciplinary proceedings are not intended to take the place of the civil actions specifically designed to redress the wrongs in question.  The Florida Bar v. Della-Donna, supra, 583 So.2d at 312 (Fla.1989) ("Disciplinary actions cannot be used as a substitute for what should be addressed in private civil actions against attorneys. They are not intended as forums for litigating claims between attorneys and third parties.").