Ethics: Model Rule 8.4(g) and Unconstitutional Limits on Attorney Expression

Description

In 2016, the ABA proposed Model Rule 8.4(g), which makes it professional misconduct to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on 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." ABA Model Rule 8.4(g).

The rule utilizes a broad definition of "conduct related to the practice of law," which includes not only "representing clients; interacting with witnesses" and other in court activities, but also "participating in bar association, business, or social activities in connection with the practice of law." Id. Comment 4.

The ABA ethics committee issued an opinion in 2020 narrowly interpreting Rule 8.4(g) to exclude comments on "issues of public concern" and suggesting that the rule applies only where comments are directed at specific persons.

Only Vermont adopted Rule 8.4(g) wholesale. Pennsylvania and Connecticut have adopted versions of the rule, and pre-enforcement challenger to the Pennsylvania rule was found to lack standing by the Third Circuit. A petition for writ of certiorari has been filed in that case.  There is currently pending a challenge to Connecticut's rule before the Second Circuit that was argued last fall.

There is a proposal pending in the Illinois Supreme Court Rules Committee to adopt a version of the rule.

In the meantime, other states, like Hawai'i have adopted rules that do not resemble Rule 8.4(g) other than to specifically target sexual harassment in the practice of law. Still other states like New York have adopted more narrow rules with specific protections for Constitutionally protected speech.

Listen as this panel of First Amendment experts discusses the regulation of attorney speech, the legality of Model Rule 8.4(g), and what Greenberg v. Haggerty teaches going forward.