In August 2016, the American Bar Association’s (“ABA”) Board of Governors approved Model Rule of Professional Conduct (“MRPC”) 8.4(g) as a model for state adoption. The Rule makes it professional misconduct for a lawyer to engage in “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” Curbing harassment and discrimination is a critically important goal. However, the actual Rule as promulgated reaches far beyond prohibiting sexual harassment and unlawful discrimination. Instead the comments to the Rule define discrimination and harassment broadly to prohibit speech that “manifests bias or prejudice” or is “derogatory or demeaning” on the aforementioned bases. Swept within the Rule’s apparent reach is speech regarding many of “the major public issues of our time” that divide our country. Further, the Rule expressly applies to settings such as Continuing Legal Education (“CLE”) courses, bar functions, and social activities in connection with the practice of law; indeed the ABA’s Report indicates it was intended to reach “lobbyists” and “settings [ ]such as law schools.”
Despite public and scholarly criticism of the Rule voicing concerns that it will work to undermine lawyers’ First Amendment rights, the Rule itself is likely to have very little actual effect on lawyers’ rights—precisely because many states are declining to adopt it, some due to opinions from their respective attorneys general that the Rule unconstitutionally infringes on lawyers’ First Amendment rights. Since its approval in 2016 only two states, Vermont and New Mexico, have adopted Rule 8.4(g) as promulgated by the ABA. Maine and New Hampshire adopted comparable rules in 2019, but both states made substantial and important changes to the Rule— including discarding entirely the ABA’s definition of discrimination—to protect lawyers’ First Amendment rights.
Despite the overarching trend of states in rejecting Model Rule 8.4(g) in view of its potential infringement on lawyers’ First Amendment rights, there is a perilous and lasting threat to those rights that has arisen as a byproduct of the ABA’s promulgation of 8.4(g). The Model Rule has cast an ominous shadow on legal scholarship and commentary addressing the recognition and protection of lawyers’ First Amendment rights. This shadow of Model Rule 8.4(g) is far more likely to undermine lawyers’ rights in the long run than the Rule itself. Indeed, the shadow has nothing to do with interpretations, enforcement, or adoption of Model Rule 8.4(g). It has nothing to do with discrimination or harassment or with either prohibiting or protecting offensive speech. Instead, the shadow is the generation of legal scholarship and commentary that discards altogether the First Amendment rights of lawyers to shore up the purported constitutionality of Model Rule 8.4(g).