Does a D.C. lawyer violate Rule 9.1 by discriminating in employment outside D.C. where that conduct is legal?

Plain-English summary

Opinion 222 (adopted November 19, 1991) addressed an inquirer who was a member of the D.C. Bar but whose office was in Virginia, where he was not licensed and did not practice. He worked for a legal defense organization and sat on the boards of his church (in Virginia) and a religious human-rights organization (in Maryland), both of which were opposed as a matter of principle to homosexuality. He asked whether Rule 9.1, effective January 1, 1991, applied to a D.C.-licensed lawyer whose office was in a jurisdiction that did not make sexual-orientation discrimination unlawful, and whether the rule reached a hiring decision made "outside the legal profession."

Rule 9.1 bars a lawyer from discriminating in conditions of employment on listed grounds including sexual orientation, and was modeled on the D.C. Human Rights Act. The committee noted that Comment [1] states the rule "is not intended to create ethical obligations that exceed those imposed on a lawyer by applicable law" and recognizes that other jurisdictions' law may be broader or narrower. Because neither Virginia, Maryland, nor federal law forbade employment discrimination based on sexual orientation, the committee concluded the inquirer had no obligation to ignore that factor in employment decisions in those states. Although Rule 8.5 makes a D.C. lawyer subject to the District's disciplinary authority for conduct elsewhere, the committee concluded that Rule 9.1 was not violated and the inquirer was therefore not subject to discipline under Rule 8.5.

The committee added that if Virginia, Maryland, or federal law were later changed to forbid sexual-orientation discrimination, Rule 9.1 would then apply to such conduct by a D.C. Bar member in those states. Having found Rule 9.1 inapplicable, the committee did not reach whether the rule covers employment decisions made outside the legal profession. One member dissented, reasoning that Rule 9.1 should be read together with Rule 8.4, so that the inquirer's employment practices for a law office supporting his D.C. practice would be subject to Rule 9.1, while his decisions for religious organizations unrelated to his practice would not.

Currency note

This opinion was issued in 1991, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did a D.C. lawyer violate Rule 9.1 by discriminating in employment outside D.C.?

A: No. The committee concluded that where the conduct occurred in Virginia and Maryland, which did not outlaw sexual-orientation discrimination, Rule 9.1 was not violated, because its commentary disclaims obligations exceeding applicable law.

Q: Does being licensed only in D.C. extend the D.C. rules to conduct elsewhere?

A: Generally yes, but not here. The committee noted Rule 8.5 subjects D.C. lawyers to D.C. discipline for conduct elsewhere, but concluded that because Rule 9.1 was not violated, the inquirer was not subject to discipline under Rule 8.5.

Q: Would the answer change if the other state's law changed?

A: Yes. The committee stated that if Virginia, Maryland, or federal law later forbade sexual-orientation discrimination, Rule 9.1 would then apply to such conduct by a D.C. Bar member in those states.

Q: Did the committee decide whether Rule 9.1 reaches decisions made outside law practice?

A: No. Having found Rule 9.1 inapplicable on these facts, the committee declined to decide whether the rule reaches employment decisions made "outside the legal profession."

Background and rules framework

The opinion interpreted D.C. Rules 9.1 and 8.5. Rule 9.1, effective January 1, 1991, bars a lawyer from discriminating in conditions of employment on listed grounds including sexual orientation, and was modeled on the D.C. Human Rights Act, D.C. Code § 1-2512 (1981), though more limited in scope; its Comment [1] disclaims creating obligations exceeding applicable law. Rule 8.5 subjects lawyers admitted in the District to its disciplinary authority for conduct outside its territorial limits. A dissenting member would have read Rule 9.1 together with Rule 8.4 (professional misconduct).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 9.1 (discrimination in employment; no ABA Model Rule counterpart at the time)
• D.C. RPC 8.5 / Model Rule 8.5 (disciplinary authority for conduct outside the jurisdiction)
• D.C. RPC 8.4 / Model Rule 8.4 (professional misconduct; discussed in the dissent)

Statutes:

• D.C. Code § 1-2512 (1981) (the D.C. Human Rights Act)

See also

• ABA Formal Op. 493: Model Rule 8.4(g) on Harassment and Discrimination
• DC Ethics Op. 311: Choice of Law for Professional Conduct in Non-Judicial Proceedings

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-222