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The Fight Over ABA Rule 8.4(g) Proceeds to the States

John J. Park, Jr. July 13, 2017
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As has been noted, the American Bar Association has proposed the adoption of a new model Rule 8.4(g) that would make it an ethical violation to harass or discriminate against another 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.” I have previously observed that the ABA’s view of free speech is incoherent and that the Rule’s reach is wide-ranging.

The ABA’s rule is not self-executing. Rather, it must be adopted in each state. Already, the Illinois State Bar Association Assembly overwhelmingly voted against adoption, and the Disciplinary Board of the Supreme Court of Pennsylvania wrote that “the breadth of ABA Model Rule 8.4(g) will pose difficulties for already resource-strapped disciplinary authorities.” In addition, the Montana Legislature rejected the proposed adoption, and so did the Supreme Court of South Carolina. The comment period for Nevada closed on July 5, 2017, and the comment period for Utah will close on July 28, 2017.

On July 5, 2017, the comment period for Nevada closed. The comments recommending against adoption of the new rule included those of the Christian Legal Society (CLS). As CLS noted, the new rule is likely to have “a chilling effect on lawyers’ expression of disfavored political, social, and religious viewpoints on a multitude of issues.” The rule promises to “create ethical concerns for attorneys who serve on nonprofit boards, speak on panels, teach at law schools, or otherwise engage in public discussions regarding current political, social, and religious questions.” In short, CLS noted that the scope of the proposed rule “encompasses nearly everything a lawyer does, including conduct and speech protected by the First Amendment.”

Moreover, the rule threatens attorneys’ membership in religious, social, or political organizations. As CLS notes, in 2015, the California Supreme Court adopted a judicial disciplinary rule prohibiting state court judges from participating in the Boy Scouts because of the organization’s views on sexual conduct.  

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