After a pivotal Supreme Court holding, states’ adoption of ABA Model Rule of Professional Conduct 8.4(g) faces an uphill battle. Rule
In August 2016, the ABA Standing Committee on Ethics and Professional Responsibility adopted Model Rule 8.4(g), which reads:
“It is professional misconduct for a lawyer 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.”
Since its adoption, Rule 8.4(g) has proven controversial because of its possible violation of the First Amendment. This controversy, however, has grown stronger since the Supreme Court’s decision in NIFLA v. Becerra.
In NIFLA v. Becerra, the Supreme Court rejected the argument that “professional speech” is afforded less constitutional protection. Instead, the Court recognized that the regulation “professional speech” is subject to strict scrutiny because “[s]peech is not unprotected merely because it is uttered by professionals.”
After Becerra, the issue becomes whether Rule 8.4(g) regulates speech that incidentally encompasses professional conduct, or whether it regulates professional conduct speech that incidentally encompasses speech.
Supporters of the rule assert that the amendment serves as a necessary commitment to a stance against sexual harassment, and the amendment further prevents attorneys from refusing to assist clients based on discriminatory grounds.
Opponents of the rule argue that the rule could have a negative effect on attorneys’ speech in contexts outside of their immediate practice, including, but not limited to, at bar association functions and legal seminars.
Currently, Vermont is the only state that has adopted Rule 8.4(g) in its entirety. Nevertheless, other states have adopted similar, yet narrower, versions.
Read more commentary here.
Read the opinion here.
Read the entire rule here.
