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ABA Watch: Unconstitutional and Blatantly Political, Model Rule 8.4(g)

George W. Dent September 11, 2017
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In 2016 the American Bar Association added new Rule 8.4(g) to its Model Rules of Professional Conduct. The rule forbids any lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” several listed factors “in conduct related to the practice of law.” Comment 3 states that “discrimination . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”

The new rule goes beyond existing Model Rule 8.4(d) in several respects. It extends to behavior that a lawyer does not know, but “reasonably should know,” violates the rule. It adds to the list of prohibited bases for discrimination, inter alia, “gender identity” and “socioeconomic status.” Most significantly, it expands the scope of covered activities from conduct that is “prejudicial to the administration of justice” or that occurs “in the course of representing a client” to encompass conduct “related to the practice of law.”

New Rule 8.4(g) raises many troubling questions, including the propriety of the bar’s dictating labor law for lawyers. The rule is poorly drafted. It is astonishingly vague, with phrases like “conduct related to the practice of law,” “reasonably should know,” and “manifests bias or prejudice.” Is every public statement by a lawyer speaking as a lawyer “conduct related to the practice of law”? Does every statement that a tribunal considers unreasoned constitute “bias or prejudice”?

However, by far the biggest problems with the new rule are that its breadth and vagueness clearly ban conduct protected by the First Amendment; its viewpoint discrimination, which also violates the First Amendment; and its potential to be applied selectively as a partisan political weapon.

Rule 8.4(g) is a content-based restriction on speech, which is subject to “strict scrutiny” and must be “narrowly tailored” to achieve a “compelling interest.” Reed v. Town of Gilbert (U.S. 2015). The rule is not limited to low-value speech, like obscenity or “fighting words.” Speech may be restricted to protect the administration of justice, although even then the restriction must be narrowly tailored to the purpose. Gentile v. State Bar of Nevada (U.S. 1991). The new rule, however is not so limited. Moreover, speech may not be prohibited “simply because society finds the idea itself offensive.” Texas v. Johnson (U.S. 1989). Rule 8.4(g) does exactly that.

Although no state has yet adopted the new rule, it would, if adopted, be plainly unconstitutional. How did the august ABA blunder so badly? The answer is that the ABA is now so politicized that even fundamental rights must yield to its political agenda. During consideration of the new rule several members warned of its constitutional deficiency. The warnings were ignored. The motive for the rule is made explicit in a memorandum from the Ethics Committee: “There is a need for a cultural shift in understanding the inherent integrity of people regardless of” their status within the protected categories. Whatever one thinks of this idea as a policy matter, the Constitution does not allow bans on speech in order to achieve “a cultural shift” in people’s beliefs. Any cultural shift must occur without such coercion.

The ABA’s flouting of the Bill of Rights here is troubling, and it is far from the only instance of its politicization. In recent decades the ABA has repeatedly departed from its proper, politically neutral task of promoting the rule of law and the sound administration of justice and taken partisan stances on controversial political issues. Of course, a private organization may do this, but then it should not be treated as an apolitical representative of the entire legal profession entitled to quasi-governmental status. It is time to treat the ABA as an interest group like any other.

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