Ethics Opinion 222

Attorney's Obligation Under Rule 9.1 Does Not Apply To Lawful Acts Outside The District Of Columbia

A member of the District of Columbia Bar who works in Virginia for a legal defense organization does not violate Rule 9.1 even though the lawyer engages in acts of employment discrimination in Virginia and Maryland that would violate that Rule and the D.C. Human Rights Act if done within the District of Columbia, because these acts are not unlawful in the states where committed.

Applicable Rules

• Rule 8.5 (Jurisdiction)
• Rule 9.1 (Discrimination in Employment)

Inquiry
The inquirer, a member of the District of Columbia bar, is an officer of a legal defense organization located in Virginia which provides legal counsel to persons involved in litigation of a constitutional and political nature relating to educational issues.

Although his office is located in Virginia, he is not licensed to and does not practice law there. The inquirer sits on the board of elders of his church and the board of directors of an international religious human rights organization. The church board of elders is located in Virginia, and the religious rights organization is located in Maryland. Both the church and the religious rights organization are opposed as a matter of principle to homosexuality and to those who condone or practice it. The inquirer does not provide legal counsel or services to his church or to the religious rights organization.

Unlike the District of Columbia neither Virginia nor Maryland, nor the Federal law, expressly forbid discrimination in employment based on sexual orientation. The inquirer asks for the committee's views on the propriety of his participation and concurrence in hiring decisions by these boards of directors denying employment to homosexuals as a matter of policy. Specifically, the inquirer asks whether Rule 9.1 of the Rules of Professional Conduct, which became effective January 1, 1991, is applicable to a person licensed to practice in the District of Columbia but whose office is located in another jurisdiction in which discrimination in employment based on sexual orientation is not unlawful; and whether this Rule is applicable to a hiring decision "made outside the legal profession."

Discussion
Rule 9.1 of the Rules of Professional Conduct, effective January 1, 1991, provides that

"[A] lawyer shall not discriminate against any individual in conditions of employment because of the individual's race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility or physical handicap."

As noted in the commentary, this provision was modeled after the District of Columbia Human Rights Act, D.C. Code 1-2512 (1981), "though in some respects [it is] more limited in scope."¹  Comment [1]. The comment further notes that the "rule is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law."

Neither Virginia nor Maryland law, nor Federal law, expressly forbid discrimination in employment based on "sexual orientation."

The question raised by this inquiry is whether acts of discrimination, which are not committed in the lawyer's professional capacity and which are not specifically unlawful in the jurisdictions where they take place, may nevertheless be deemed to be professional misconduct under the standard set forth in Rule 9.1 governing members of the District of Columbia Bar, regardless of where this conduct occurs. A related issue is the extent to which a member of the District of Columbia bar is governed by the D.C. Rules of Professional Conduct, and subject to discipline for violations, for conduct occurring in another jurisdiction.

With regard to the latter issue, Rule 8.5 makes it abundantly clear that all lawyers admitted to practice in this jurisdiction are "subject to the disciplinary authority of this jurisdiction." As the comment to this rule notes (Comment [1]):

"In modern practice, lawyers frequently act outside the territorial limits of the jurisdiction in which they are licensed to practice, either in another state or outside the United States. In doing so, they remain subject to the governing authority of the jurisdiction in which they are licensed to practice."

In the circumstances presented here, however, the principal question to be determined is whether Rule 9.1 is violated where the lawyer's conduct occurs outside the District of Columbia in jurisdictions that do not expressly forbid acts of discrimination based on sexual orientation. Comment [1] to Rule 9.1 recognizes that the law in other jurisdictions may be broader or narrower than the Rule, and states that "[t]he rule is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law."

Since neither Virginia nor Maryland, nor the Federal law, outlaw acts of discrimination in employment based on "sexual orientation", the inquirer has no obligation to ignore this factor when he participates in hiring or other employment decisions in those states.

The Committee concludes, therefore, that Rule 9.1 is not applicable in these circumstances and that the inquirer is not subject to discipline under Rule 8.5. The Committee notes, however, that if Maryland or Virginia law, or the Federal law, should be changed to include "sexual orientation" as a forbidden ground for employment discrimination, Rule 9.1 would then apply to such acts of discrimination by a member of the D.C. bar in those states, as well as in the District of Columbia.

In view of its determination that Rule 9.1 is not applicable to the fact situation presented here, the Committee believes that it is unnecessary at this time to consider the other question raised by the inquirer, namely, whether Rule 9.1 applies to employment decisions made by a member of the D.C. Bar "outside the legal profession" -- i.e., in connection with church-related or other non-legal organizations in which the lawyer is involved.

Dissent of One Member from Opinion No. 222
The Rules of Professional Conduct (Rules) are established by Order of the District of Columbia Court of Appeals as "the standards governing the practice of law in the District of Columbia." Order No. M-165-33 (3/1/90), p. v., D.C. Rules of Professional Conduct. "They should be interpreted with reference to the purposes of legal representation and the law itself." (Scope, id. at p. ix, ¶ [1]) "The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer ... The Rules simply provide a framework for the ethical practice of law." Id. ¶[2].

The Rules themselves provide a means for enforceable interpretation of the language of the Order.

Rule 8.4, relating to professional misconduct, proscribes activities which may occur outside the specific "practice" of law but which have a discernable relation to the lawyer's ability to practice law in accordance with the rules, e.g., the actions involve a moral or personality flaw or a characteristic which reasonably may be expected to assert itself in the lawyer's practice and so result in a violation of the Rules. However, in making determinations of application of the Rules, we must recall that it applies "only for offenses that indicate lack of those characteristics relevant to law practice." (Comment [1] to Rule 8.4) and "with reference to the purposes of legal representation and the law itself." (Scope, supra, at¶[1])

Rule 8.5, relating to jurisdiction, extends the reach of the Rules outside the territorial boundaries of the District of Columbia, presumably in parallel with Rule 8.4 that an action outside the local jurisdiction may affect practice "in" the District of Columbia. Comments to Rule 8.5 recognize that some limitations in application of the Rules may be appropriate where conformance to the rules is not compatible with obligations placed on the lawyer in the other jurisdiction. See Comments [2] and [3]. However, no limitations are imposed where the obligations in the other jurisdiction are compatible with the rules, where there are no obligations imposed on the lawyer in the other jurisdiction, or where the "acts" (Comment [1]) in the other jurisdiction cannot truly be "practice" in that jurisdiction. Under these conditions, there is no conflict and the reach of Rule 8.5 is limited only in terms of the reach of Rule 8.4.

Rule 9.1, relating to discrimination in employment, bars discrimination in employment due to sexual orientation and other specified factors not at issue here. Both the legislative history of the rule and Comment [1] make it clear that the rule is modeled after and enacted in consequence of the D.C. statute and the rule presumably is subject to modification in application as court rulings interpret the statute. It is more limited than the statute and defers to District government action. Any violation of Rule 9.1 inevitably violates the statute. Within the jurisdiction of the District government, therefore, there can be no conflict and neither Rule 8.4 nor Rule 8.5 is applicable.

That, however, is not true where the District statute does not apply. While the language of Rule 9.1 is clear and direct, it is no more so than other rules, and there is nothing to indicate that it stands in isolation of other rules. It is established committee practice that no rule is an isolate considered entirely of its own but each must be interpreted in accord with other relevant rules. Rules 8.4 and 8.5, speaking to the scope of the Order and the whole body of the Rules, are clearly applicable here. Indeed, in Comment [1] to Rule 9.1, the Court places Rule 9.1 within the limits of Rule 8.5, and there is no reason to believe it intended to exempt it from Rule 8.4. One may conclude that since Rule 8.5 does not apply within the District, the Court in its comment intended that 8.5, and by implication 8.4, applies to the interpretation of Rule 9.1 outside the District.

The inquirer is a lawyer licensed in the District of Columbia but not in any other jurisdiction. He is an elder in several religious organizations presumably participating in employment decisions. The religious organizations as a matter of conviction restrict employment based on sexual orientation. There is no color of legal practice in the lawyer's participation in these organizations, and there is no basis for believing that his participation colors his legal practice in the District of Columbia. We may assume that his participation in them reflects personal beliefs and, hypothetically, that these beliefs may affect the way he conducts his practice. However, many lawyers have deeply felt beliefs or convictions, religious or otherwise, which may influence their practice. Unless there is clear indication that conformance to such a conviction has resulted in actions within his practice that violate the Rules, we cannot say that he cannot practice law if he holds what may well be contentious or even offensive convictions. See ¶ 1 above.

In sum, it is my view that Rule 9.1 must in this instance be interpreted in light of Rule 8.4, and that under Rule 8.4 the lawyer's activities as a member of a religious organization outside the District of Columbia are not subject to application of the Rules.

The inquirer also asks about his employment practices in his law office which is located outside the territory of the District of Columbia, in this instance in Virginia. We do not know where the office is located, or whether the inquirer is in active practice, but he is a licensed member of the D.C. Bar, and he may engage in practice whenever and from wherever he wishes. He is not licensed in the jurisdiction in which his office is physically located, nor is he in practice in any jurisdiction other than the District of Columbia which is at issue here. The only function of the Virginia office is to support the practice of law in the District. Much, perhaps most, of what a lawyer does in the practice of law takes place in his office. Indeed, depending on the nature of his practice, all "acts" related to that practice may occur without the lawyer ever setting foot within the boundaries of the District. All people employed in that office, lawyers, paralegals, and clerks are in support of the lawyer's practice in the District. Quite aside from Rule 9.1, and prior to its enactment, we have found employment practices an integral part of the lawyer's legal practice and subject to the Rules (Opinion Nos. 65, 181, 209). There is no reason to believe that the obligations with respect to conditions of employment established in Rule 9.1 should be treated any differently than the obligations established under other rules. The only issue, therefore, is whether employment practices outside the territory of the District are subject to the Rules.

Rule 8.5, in extending application of the rules to lawyers "act[ing] outside the territorial limits of the [District of Columbia]" (Comment [1]) contemplates the possibility of conflicting obligations. However, there is no conflict here. There is no limiting language in Rule 9.1 itself; Comment [1] explains that "The rule is not intended to create ethical obligations imposed on a lawyer by applicable law." (Emphasis supplied) But there is no applicable law in Virginia and nothing is "imposed" on the lawyer except, in fact, Rule 9.1. The lawyer is in fact obligated to be aware that there is no federal law nor Virginia law or rule that affects his employment practices, but there is a body of rules that affects all of his practice of D.C. law. The lawyer does not practice in Virginia and, in any event, Virginia law is silent on the sexual orientation issue: the lawyer is free to discriminate in hiring or not to do so. His employment practices, therefore, are bound only by his conscience and the obligations placed on him as a condition of the practice of law in the District of Columbia.

Rule 8.5 clearly was established to make certain that lawyers do not escape the reach of the Rules and the disciplinary authority when practicing District of Columbia law. The lawyer, in this instance, is not subject to the rules of the jurisdiction in which he is located. If he is not subject to the rules in the jurisdiction in which he practices, any lawyer with a Metrocard may place himself in that limbo of lawyerly delight where he is subject to no rules.

I would have the opinion state that a member of the District of Columbia Bar who is not licensed to practice law elsewhere, but whose office in support of his practice in the District is located outside D.C. violates the prohibitions of Rule 9.1 if he discriminates in employment for that office, and that he is not subject to the provisions of Rule 9.1 if he participates in employment decisions as a member of religious organizations having no relation to his practice of law, and where such actions are not illegal.

Inquiry No. 90-5-20
Adopted: November 19, 1991

1. The Rule is more limited than the D.C. Code in several respects. The acts prohibited by D.C. Code § 1-2512 (1981) include discrimination based upon "personal appearance" and "matriculation, or political affiliation of any individual", in addition to the factors specified in Rule 9.1. The D.C. Code provision also defines more comprehensively and specifically the nature of the employment practices against which it is directed, declaring that it is an unlawful discriminatory practice, among other things, "to fail or refuse to hire, or to discharge, any individual" based on the prohibited factors; or to discriminate for these reasons against any individual "with respect to his compensation, terms, conditions, or privileges of employment, including promotion." Thus, it is unclear whether the language used in Rule 9.1, ("in conditions of employment"), was intended to encompass all of the employment-related conduct covered by D.C. Code §1-2512. For purposes of this opinion, however, the Committee assumes that the Rule's phrase "conditions of employment" is coextensive with the employment-related determinations forbidden by the D.C. Code.