Supreme Court of Missouri
en banc
July 18, 2019
Effective July 18, 2019
Effective July 18, 2019
In re:
(1) Repeal of paragraphs [1], [2], [3], and [4] of the Comments of subdivision 2-2.3, entitled "Bias, Prejudice, and Harassment," all of the foregoing as a part of Rule 2, entitled "Code of Judicial Conduct," and in lieu thereof adoption of new paragraphs [1], [2], and [3] of the Comments of subdivision 2-2.3, entitled "Bias, Prejudice, and Harassment."
(2) Repeal of subdivision (g) of subdivision 4-8.4 and paragraph [4] of the Comments of subdivision 4-8.4, entitled "Misconduct," all of the foregoing as a part of Rule 4, entitled "Rules of Professional Conduct," and in lieu thereof adoption of a new subdivision (g) of subdivision 4-8.4 and a new paragraph [4] of the Comments of subdivision 4-8.4, entitled "Misconduct."
(3) Repeal of the title of Court Operating Rule 18, entitled "Bias or Prejudice in the Judicial System," and in lieu thereof adoption of a new title of Court Operating Rule 18, entitled "Bias, Prejudice, or Harassment in the Judicial System."
(4) Repeal of the heading title and subdivision 18.01, entitled "Prohibition of Bias or Prejudice," of Court Operating Rule 18, entitled "Bias, Prejudice, or Harassment in the Judicial System," and in lieu thereof adoption of a new heading title and a new subdivision 18.01, entitled "Prohibition of Bias, Prejudice, or Harassment."
ORDER
1. It is ordered that effective July 18, 2019, paragraphs [1], [2], [3], and [4] of the Comments of subdivision 2-2.3 of Rule 2 be and the same are hereby repealed and new paragraphs [1], [2], and [3] of the Comments of subdivision 2-2.3 adopted in lieu thereof to read as follows:
2-2.3 BIAS, PREJUDICE, AND HARASSMENT
* * *
COMMENT
[1] A judge who manifests bias or prejudice, or engages in harassment, in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.
[2] Whether a judge's conduct violates Rule 2-2.3 can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 2-2.3, "manifests bias or prejudice" means the use of words or conduct that the judge knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that shows hostility or aversion toward a person based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. "Harassment" includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
[2] Whether a judge's conduct violates Rule 2-2.3 can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 2-2.3, "manifests bias or prejudice" means the use of words or conduct that the judge knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that shows hostility or aversion toward a person based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. "Harassment" includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) submission to that conduct is made, either explicitly or implicitly, a term or condition of the individual's employment;
(b) submission to or rejection of such conduct by an individual is used as a factor in decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive environment.
(b) submission to or rejection of such conduct by an individual is used as a factor in decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive environment.
2. It is ordered that effective July 18, 2019, subdivision (g) of subdivision 4-8.4 and paragraph [4] of the Comments of subdivision 4-8.4 of Rule 4 be and the same are hereby repealed and a new subdivision (g) of subdivision 4-8.4 and a new paragraph [4] of the Comments of subdivision 4-8.4 adopted in lieu thereof to read as follows:
4-8.4 MISCONDUCT
* * *
(g) manifest by words or conduct, in representing a client, bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. This Rule 4-8.4(g) does not preclude legitimate advocacy when race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or other similar factors, are issues. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 4-1.16.
* * *
COMMENT
* * *
[4] Rule 4-8.4(g) identifies the special importance of a lawyer's words or conduct, in representing a client, that manifest bias or prejudice or constitute harassment against others based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. Rule 4-8.4(g) excludes those instances in which a lawyer engages in legitimate advocacy with respect to these factors. A lawyer acts as an officer of the court and is licensed to practice by the state. The manifestation of bias or prejudice or the engagement in harassment by a lawyer, in representing a client, fosters discrimination in the provision of services in the state judicial system, creates a substantial likelihood of material prejudice by impairing the integrity and fairness of the judicial system, and undermines public confidence in the fair and impartial administration of justice.
Whether a lawyer's conduct constitutes professional misconduct in violation of Rule 4-8.4(g) can be determined only by a review of all the circumstances; e.g., the gravity of the acts and whether the acts are part of a pattern of prohibited conduct. For purposes of Rule 4-8.4(g), "bias or prejudice" means words or conduct that the lawyer knew or should have known discriminate against, threaten, intimidate, or denigrate any individual or group. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. For purposes of Rule 4-8.4(g), "harassment" is verbal or physical conduct that shows hostility or aversion toward a person based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status. "Harassment" includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(a) submission to that conduct is made, either explicitly or implicitly, a term or condition of the individual's employment;
(b) submission to or rejection of such conduct by an individual is used as a factor in decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive environment.
(b) submission to or rejection of such conduct by an individual is used as a factor in decisions affecting such individual; or
(c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive environment.
* * *
3. It is ordered that effective July 18, 2019, the title of Court Operating Rule 18 be and the same is hereby repealed and a new title of Court Operating Rule 18 adopted to read as follows:
COURT OPERATING RULE 18 BIAS, PREJUDICE, OR HARASSMENT IN THE JUDICIAL SYSTEM
* * *
4. It is ordered that effective July 18, 2019, the heading title and subdivision 18.01 of Court Operating Rule 18 be and the same are hereby repealed and a new heading title and a new subdivision 18.01 adopted to read as follows:
COURT OPERATING RULE 18 BIAS, PREJUDICE, OR HARASSMENT IN THE JUDICIAL SYSTEM
COURT OPERATING RULE 18.01 PROHIBITION OF BIAS, PREJUDICE, OR HARASSMENT
The manifestation of bias or prejudice or the engagement in harassment in the performance of court duties impairs the fairness and impartially of court proceedings, brings the judicial system into disrepute, and is unacceptable in the courts of the State of Missouri.
All court employees shall perform court duties without manifesting bias or prejudice or engaging in harassment. Court employees shall not, in the performance of court duties, by words or conduct, manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status.
COURT OPERATING RULE 18.01 PROHIBITION OF BIAS, PREJUDICE, OR HARASSMENT
The manifestation of bias or prejudice or the engagement in harassment in the performance of court duties impairs the fairness and impartially of court proceedings, brings the judicial system into disrepute, and is unacceptable in the courts of the State of Missouri.
All court employees shall perform court duties without manifesting bias or prejudice or engaging in harassment. Court employees shall not, in the performance of court duties, by words or conduct, manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, religion, national origin, ethnicity, disability, age, sexual orientation, or marital status.
5. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
6. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
__________________________________
GEORGE W. DRAPER III
Chief Justice
__________________________________
GEORGE W. DRAPER III
Chief Justice