All of the following, then, might well lead to discipline if the ABA adopts this rule as part of its influential Model Rules of Professional Conduct, and then states adopt it in turn:
- A law firm preferring more-educated employees — both as lawyers and as staffers — over less-educated ones.
- A law firm preferring employees who went to high-“status” institutions, such as Ivy League schools.
- A law firm contracting with expert witnesses and expert consultants who are especially well-educated or have had especially prestigious employment.
- A solo lawyer who, when considering whether to team up with another solo lawyer, preferring a wealthier would-be partner over a poorer one. (The solo might, for instance, want a partner who would have the resources to weather economic hard times and to help the firm do the same.)
- A law firm preferring lower-socioeconomic-status employees, giving someone who is poor or unemployed a hand up (even when its goal is not “to promote diversity,” because it’s not consciously looking for a workforce of mixed socioeconomic status, but simply to help the poor).
Back when the rule was limited to actions that were “prejudicial to the administration of justice” and didn’t cover ordinary employment decisions, including socioeconomic status as one of the forbidden bases for discrimination may have made sense. For instance, insulting a witness because of his poverty, where the poverty is not relevant to the case, might reasonably be condemned. But now the rule is being broadened far beyond this.
I think that, more broadly, there’s no reason for state bars or state courts to go beyond the existing state and federal anti-discrimination categories when it comes to employment and similar matters. If state law bans, say, sexual orientation discrimination in employment generally, that would normally apply to law firms as well as to other firms. But if a state legislature chose not to ban sexual orientation, gender identity or marital status discrimination, I think that, too, should apply equally to lawyers. State bars and state courts may reasonably impose special rules on behavior in court, behavior with respect to witnesses, and the like; but I don’t think they should become employment regulators.
Yet even if state bars and courts do want to regulate employment discrimination, they should certainly not include “socioeconomic status.” To my knowledge, no state anti-discrimination law prohibits such discrimination, and there is very good reason not to prohibit it.