The new ABA Model Rule 8.4(g) prohibits attorneys from engaging in "harmful," "derogatory," or "demeaning" speech in any activity "related to the practice of law," including "bar association, business or social activities."
Proponents of the rule have advanced several arguments in its favor and raised several defenses in answer to its critics. But these arguments and defenses are unconvincing because they're based on factual misrepresentations or on mischaracterizations of the rule.
Proponents of the rule summarily dismiss the many claims that it is unconstitutional
Many legal authorities point out that the new rule is unconstitutional. Proponents of the rule simply ignore this ever-increasing chorus of constitutional criticism.
The Texas and South Carolina attorneys general - the only attorneys general to have thus far opined on the rule - have both issued official opinions that it would likely violate the free speech, free association, and free exercise rights of attorneys. Indeed, the South Carolina Supreme Court recently rejected the rule after the South Carolina attorney general issued his opinion against it.
The ABA's own Standing Committee on Attorney Discipline, as well as the Professional Responsibility Committee of the ABA Business Law Section, warned the ABA that the new Rule may violate attorneys' First Amendment speech rights.
And prominent legal scholars - such as UCLA constitutional law professor Eugene Volokh, Chapman University constitutional law and legal ethics professor
In addition, the authors of at least four law review articles have concluded that Model Rule 8.4(g) - and other rules like it - may violate attorneys' First Amendment rights. For example, in New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call For Scholarship, Andrew F. Halaby and Brianna L. Long, 41 J. Legal Prof. 201, 2016-2017, the authors contend that the new rule has due process and First Amendment free expression infirmities. In Reply: A Pause for State Courts Considering Model Rule 8.4(g), The First Amendment and "Conduct Related to the Practice of Law," Josh Blackman, 30 Geo. J. Legal Ethics 241 (2017), the author argues that the rule constitutes an unjustified incursion into constitutionally protected speech. In Lawyers Lack Liberty: State Codification of Comment 3 of Rule 8.4 Impinge On Lawyers' First Amendment Rights, Lindsey Keiser, 28 Geo. J. Legal Ethics 629 (Summer 2015) the author states that these sorts of rules violate attorneys' Free Speech rights. And in Attorney Association: Balancing Autonomy and Anti-Discrimination, Dorothy Williams, 40 J. Leg. Prof. 271 (Spring 2016), the author shows that such rules violate attorneys' Free Association rights.
Furthermore, the National Lawyers Association's Commission for the Protection of Constitutional Rights has issued a statement that ABA Model Rule 8.4(g) would violate an attorney's free speech, free association, and free exercise rights.
And the Montana Legislature has adopted a Joint Resolution declaring that it would be an unconstitutional act of legislation and violate the First Amendment rights of Montana citizens for the Supreme Court of Montana to enact ABA Model Rule 8.4(g).
Following the lead of the ABA, however, the rule's proponents continue to summarily dismiss these serious constitutional criticisms, without substantively addressing them. It is telling that the rule's proponents do not even try to mount a convincing constitutional defense — most likely because they cannot.
Proponents of the rule erroneously argue that lawyers abandon their constitutional rights when they enter the legal profession
When proponents of the rule provide any response to claims that it is unconstitutional, they often contend that, even if the rule does encroach upon lawyers' free speech and other constitutional rights, such is merely the cost attorneys must pay to participate in a regulated profession.
But that is, of course, nonsense. Citizens do not surrender their First Amendment speech rights when they become lawyers.
Indeed, the ABA itself recently acknowledged this in an amicus brief it filed in the case of Wollschlaeger, et al. v. Governor of the State of Florida, et al. (11th Circuit). In its brief, the ABA denied that a law regulating speech should receive less scrutiny merely because it regulates professional speech. "On the contrary," the ABA stated, "much speech by . . . a lawyer . . . falls at the core of the First Amendment. The government should not, under the guise of regulating the profession, be permitted to silence a perceived 'political agenda' of which it disapproves. That is the central evil against which the First Amendment is designed to protect."
"Simply put," the ABA stated, "states should not be permitted to suppress ideas of which they disapprove simply because those ideas are expressed by licensed professionals in the course of practicing their profession . . . Indeed, the Supreme Court has never recognized 'professional speech' as a category of lesser protected expression, and has repeatedly admonished that no new such classifications be created."
In support of its position, the ABA cited NAACP v. Button, 371 U.S. 415 (1963) for the proposition that "notwithstanding the State's 'interest in the regulation of the legal profession,' a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights."
In short, lawyers do not surrender their constitutional rights when they enter the legal profession. And the state may not ignore attorneys' constitutionally protected freedoms under the guise of professional regulation.
Proponents of the rule deny that the new rule is an historical departure from earlier attorney misconduct rules
Opponents of the rule point out that — in creating what is essentially a free-standing speech code for attorneys — the new rule represents a significant departure from past attorney misconduct rules, which historically have been limited to prohibiting conduct that either prejudices the administration of justice or renders the attorney unfit to practice law.
In response, proponents often argue that the new rule is nothing unusual and merely follows the lead of the many states that have already adopted similar black-letter nondiscrimination provisions in their rules of professional conduct.
But contrary to these contentions, the majority of states have not seen fit to adopt any black-letter anti-discrimination rules. And of those states that do have such provisions (other than Vermont, which is the only state that has adopted the new Model Rule), none of those anti-discrimination rules are comparable to the new Model Rule.
For example, other than Vermont, none of those jurisdictions extends its rule to "conduct related to the practice of law." Seven of those jurisdictions limit their coverage to conduct "in the representation of a client" or "in the course of employment" after having been retained; eight states limit the applicability of their non-discrimination rules to conduct toward other counsel, litigants, court personnel, witnesses, judges, and others involved in the legal process; California limits its provision to the management and operation of a law practice; Massachusetts limits its rule to conduct before a tribunal; and D.C. limits its rule to employment discrimination.
And very importantly, other than Vermont, no state rule prohibits - as the new model rule does - "harmful," "derogatory," or "demeaning" speech or conduct, probably because, as noted above, such a rule would raise serious constitutional concerns.
Further, eight states limit their anti-discrimination rules to "unlawful" discrimination or discrimination "prohibited by law." Indeed, of those eight states, half of them go even further, requiring that, before any disciplinary claim can even be filed, a tribunal of competent jurisdiction other than a disciplinary tribunal must first have found that the attorney has actually violated a federal, state, or local anti-discrimination statute or ordinance.
And unlike the new model rule, eight of the states with black letter anti-discrimination rules require that the alleged discrimination actually either prejudice the administration of justice or render the attorney unfit to practice law.
Finally, the model rule has a "know or reasonably should know" standard, whereas four of the states with black-letter anti-discrimination rules require the discriminatory conduct to be "knowing," "intentional" or "willful."
So the argument that the new ABA Rule is not unusual and simply follows the lead of what many states have already enacted is simply not true. The new rule represents an alarming departure from previous attorney misconduct rules.
Proponents of the rule deny that the rule will require attorneys to accept clients and cases they don't want to accept
The rule's opponents have rightly pointed out that it will, in practice, require attorneys to accept clients and cases that attorneys, for a variety of very good reasons, do not want to accept - invading attorneys' professional autonomy, forcing attorneys into unwanted fiduciary attorney-client relationships, and exposing attorneys to discrimination claims merely for exercising their professional judgment as to which clients to represent.
In response, proponents of the rule repeatedly state that it will not require lawyers to accept clients and cases they don't want to accept. But that is simply not true.
The entire purpose of the new rule is to prohibit attorneys from discriminating against anyone - including clients - in conduct related to the practice of law. Without more, that would clearly include an attorney's decision to decline a case or client for a reason that could be considered discriminatory. The only provision in the rule that purports to address this issue - and the provision upon which proponents of the rule rest their contention that it will not interfere with an attorney's client selection decisions - reads: "This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16."
But Rule 1.16 does not even address the question of what clients or cases an attorney may decline. It only addresses the question of which clients and cases an attorney must decline. Rule 1.16 addresses three circumstances in which an attorney is prohibited from representing a client, namely: (a) if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, (b) the lawyer is discharged, or (c) the representation will result in violation of the Rules of Professional Conduct or other law. None of these prohibitions has anything whatever to do with an attorney's decision not to represent a client because the attorney does not want to represent the client. It only addresses the opposite situation - namely, in what circumstances an attorney who otherwise wants to represent a client may not do so.
Indeed, it is clear from Vermont's recent adoption of the new rule that it will, in fact, reach a lawyer's client selection decisions. In the Reporter's Notes appended to Vermont's new rule, the Vermont Supreme Court expressly states that "Rule 1.16 must also be understood in light of Rule 8.4(g)" and that an attorney's client selection or withdrawal decisions "cannot be based on discriminatory or harassing intent without violating the rule."
The lesson from Vermont is that - contrary to the representations of the rule's proponents -a regime governed by the new Model Rule will, in fact, require attorneys to represent clients they do not want to represent, and will subject them to possible discrimination claims from anyone whose representation the attorney declines. In this regard as well, the new rule represents a stunning departure from the deference historically given to attorneys to choose which clients and cases to accept and which to decline.
A bad deal for lawyers
In an attempt to convince lawyers to buy into the new ABA Model Rule, its proponents are mischaracterizing the rule and ignoring its obvious flaws. They're hoping attorneys are not paying attention. But lawyers need only read the rule for themselves to see that its proponents are peddling a bad product. Lawyers shouldn't buy what the rule's proponents are selling, because the rule is an extremely bad deal for lawyers.
Bradley Abramson serves as senior counsel to the Alliance Defending Freedom. He directs the Bar Association Project, which focses on encouraging allied attorneys to participate in and influence bar associations in order to protect and advance religious liberty.
Suggested citation: Bradley Abramson, Gagging Attorneys: A Critical Look at the ABA "Anti-Discrimination" Rule, JURIST - Academic Commentary, Jul. 31, 2017, http://jurist.org/forum/2017/03/bradley-abramson-aba-rule.php.
This article was prepared for publication by Kelly Cullen, a JURIST Assistant Editor. Please direct any questions or comments to him at email@example.com