Reply: A Pause for State Courts Considering Model Rule 8.4(G) The First Amendment and 'Conduct Related to the Practice of Law'

Abstract

In August 2016, the American Bar Association approved Model Rule of Professional Conduct 8.4(g). The new provision provides that it is misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [4] explains that “conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” The Model Rules are just that — models, that do not apply in any jurisdiction. Now the project goes to the states, as state courts consider whether to adopt Rule 8.4(g).

In this issue, Professor Steven Gillers offered an analysis of the new provision in an article titled, "A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g)." In this brief reply, I suggest a pause for state courts considering Rule 8.4(g), in light of its First Amendment implications. (Professor Gillers was given an opportunity to reply to my essay, but declined to do so.)

Part I focuses on how Rule 8.4(g) extends its jurisdiction to “conduct related to the practice of law” for speech that can be deemed “harassment.” Lectures given at CLE events, or dinner-time conversation at a bar-association function, would now be subject to discipline if the speaker reasonably should know someone would find it “derogatory” on the basis of eleven protected classes. This risk of discipline will serve to chill public speech on matters of public concern. Neither the Rule nor the comments express any awareness of this novel intrusion into the private spheres of an attorney’s professional life.

Part II compares the operation of Rule 8.4(g) with previous ABA model rules, as well as state jurisdictions that have enacted anti-bias regimes. This provision is unprecedented, as it extends a disciplinary committee’s jurisdiction to conduct merely “related to the practice of law,” with only the most tenuous connection to representation of clients, a lawyer’s fitness, or the administration of justice.

Part III discusses the chilling effects of Rule 8.4(g). Though courts have given deference to bar associations to regulate speech that arises during the practice of law, as the expression becomes more attenuated from the bar association’s traditional goals, the state interest becomes far less compelling. In this sense, past precedents upholding disciplinary actions are largely unhelpful. Rule 8.4(g) sweeps in a vast amount of public speech on matters of public concern, and imposes an unlawful form of viewpoint discrimination. At bottom, the defenders of the rule can only urge us to trust the disciplinary committees. The First Amendment demands more.

This essay concludes by offering three simple tweaks to the comments accompanying Rule 8.4(g) that serve the drafter’s purposes, but provide ample protection for free speech.