In 2016, in the wake of increasing public focus on workplace harassment and discrimination, the American Bar Association (ABA) revised Model Rule of Professional Conduct 8.4 (Misconduct) to include section (g),which specifically prohibits harassment and discrimination. Maine
The addition of section(g) was controversial at the time and continues to be the subject of debate throughout the country. Recently, Maine became the second state, after Vermont, to adopt the the amendment. Arizona, Tennessee, and Illinois have declined to adopt 8.4 (g).
Maine’s newly adopted Rule 8.4(g), which is almost identical to its ABA counterpart, provides that any conduct or communication related to the practice of law that a lawyer “knows or reasonably should know” is harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity is professional misconduct. Harassment as “derogatory or demeaning” conduct.
The ongoing controversy stems, in part, from allegations about 8.4 (g)’s potential violation of the First Amendment. Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, explains, “It has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as ‘demeaning’ to others.” However, the debate is exemplified by New York University School of Law legal ethics professor Stephen Gillers counterpoint. “The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment [and] . . . . [n]o case supports it.”
Read more about this ethical tension here. ABA’s Model Rule 8.4 Misconduct can be found here.
