New Legal Ethics Rule Threatens Attorney Free Speech
What is Model Rule 8.4(g)?
The Proposed Rule 8.4 is a modification to the Rules of Professional Conduct for lawyers approved by the American Bar Association (ABA) in 2016, as a suggestion to bar associations across the 50 states. The Rules of Professional Conduct are a set of legal ethics rules that lawyers must follow to ensure the ethical, professional practice of law. Some states have adopted it and many more are considering it. The text reads:
“It is professional misconduct for a lawyer to:...(g) 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. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”
What was the previous Model Rule 8.4?
The previous Model Rule 8.4 made it misconduct for a lawyer to, in the course of representing a client, “manifest bias or prejudice” on the basis of several categories, such as religion, race, or national origin, where such actions are prejudicial to the administration of justice. Or more plainly put, under that model rule it was misconduct to discriminate against someone while practicing law in such a way that it impairs your ability to represent your client effectively or reduces access to justice for persons on the basis of the listed characteristics.
The prior version did not actually have its own provision, but was an official comment from the ABA regarding subsection (d)’s prohibition on conduct that is “prejudicial to the administration of justice,” and its scope was expressly limited accordingly.
Exemption for Legitimate Advocacy and Advice
The rule purportedly exempts “legitimate advocacy and advice” - so long as it is “consistent with the rules” - which arguably undermines the ABA’s rationale for proposing Model Rule 8.4(g) - that such conduct undermines public confidence in the legal system. But if the prohibited conduct is so harmful, then how could ostensibly “legitimate” advocacy actually be legitimate?
Many people unironically agree with feminist advocacy being illegitimate, at least when it comes to “gender identity.” The exemption is mere lip service; in practice, attorneys and judges define as harassment and discrimination the very “legitimate advocacy” for women’s sex-based rights that is supposedly permitted under this rule.
How has the New Model 8.4(g) changed the old rule?
There are several ways that the rule has been changed.
1) New Protected Categories
The new rule adds new protected categories, including gender identity, bringing the total up to eleven. Gender identity as a protected class raises many concerns in this context, since the use of sex-based pronouns and advocacy for the protection of single-sex spaces (among many other things), are frequently claimed to amount to “discrimination,” “bias,” and “harassment.”
Prohibiting “discrimination” is particularly concerning because limited discrimination against men on the basis of sex is lawful when necessary for women’s safety or privacy, among other things (I.e. single-sex spaces). Sex is subject to intermediate judicial scrutiny; this means that laws can “recognize” sex in situations where the differences between men and women are relevant. In fact, one of Oxford dictionary’s definitions of “discrimination” is “recognition and understanding of the difference between one thing and another.”
This concern about “gender identity’s” inclusion is validated by the ABA’s comment defining discrimination (“harmful verbal… conduct”) and harassment (“derogatory or demeaning verbal… conduct”). It further defines sexual harassment in part as “unwelcome verbal… conduct of a sexual nature.” The comment also states that laws on discrimination can be used as a guide. But such laws increasingly track with the problematic definitions here, including for sexual harassment.
For example, New York City’s unconstitutional practice of reporting public correctional employees’ use of sex-based language as sexual harassment under the Prison Rape Elimination Act. A challenge to that policy would be heard by a New York judge, where ethical opinions expressly compare “mis-gendering” to racial slurs, banning it from the courtroom and requiring judges to mandate all litigants use “preferred” pronouns.
2) Broader and More Vague Types of Conduct
The new rule removes the focus from “bias or prejudice” - already somewhat subjective - to the much broader, ill-defined “harassment” and “discrimination.” One question rarely asked is “why?” It is unclear what is meant to be the practical difference between the previous and new words, and why “bias or prejudice” was insufficient to address whatever problem this model rule seeks to solve.
After all, who gets to decide what constitutes harassment when it comes to political speech? The Supreme Court has repeatedly said that it is not the role of the government or its officials to prescribe what shall be offensive. Not only are “harassment” and “discrimination” much more open for interpretation than what they are replacing, but that interpretation increasingly disfavors women.
3) Huge Expansion in Activities the Rule Reaches
The ABA also changed the previous rule of barring such “conduct in the course of representing a client”, vs. the new Model Rule 8.4(g)’s expansive scope of “conduct related to the practice of law.”
What is the difference? In the ABA’s Official Comment #4 to the proposed rule, they explain that: “Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
The scope went from “while representing a client” to “while representing a client, talking to anybody ‘while engaged in the practice of law,’ conducting business, networking, or even social activities if “in connection with the practice of law.”
Effects on Attorneys and the Legal Profession
This new rule is a massive and novel intrusion into the beliefs and speech of lawyers. Such a rule, if adopted, would mean any legal professional could face discipline from their State Bar Association for saying anything that might be offensive to a person from a protected class — even if that person is merely engaging in discussion at a lecture, or at an attorney dinner event, or any number of other contexts.
Furthermore, consider the effect such a rule could have on classroom discussions in law school — which are indeed designed to prepare students for the practice of law — concerning important matters of public concern.
For attorneys with deeply held beliefs about sex and sexuality, or who want to zealously advocate for their clients’ deeply held beliefs, this rule makes their practice much more difficult and perilous, and for limited benefit. What objectively harmful behaviors or activities - specifically - are covered under this rule that were not covered under the last rule? It is difficult to obtain an answer to this question from decision-makers, leading some of us to wonder whether the expansive yet ambiguous new phrasing is a feature, not a bug.
What This Means for WoLF
WoLF’s mission is to restore, protect, and advance the rights of women and girls, largely though legal and policy advocacy. Critical to our advocacy, litigation in particular, is our right to identify men as men, including through our use of sex-based pronouns to describe men and women.
The ABA’s comment on rule 8.4(g) states that a lawyer may raise a legal challenge (or simply not comply) if he or she has a good-faith belief that no valid obligation exists. WoLF absolutely believes that there is no valid obligation to ever lie in court (or anywhere) about which sex a person is, or to comply with demands to adhere to an ideology that believes in gendered souls.
Where is Rule 8.4 being adopted?
Shortly after the ABA adopted Model Rule 8.4(g), it sent a letter to every state supreme court asking them to also adopt the new rule, but each state may determine for itself whether to adopt ABA Model Rule 8.4(g).
The ABA claims that twenty-four states already have a rule like ABA Model Rule 8.4(g), but that’s not quite true. Twenty-four states have a rule that addresses "bias" in some way, but only Vermont has a rule as broad in scope as ABA Model Rule 8.4(g). Thirteen states have adopted a more restricted comment, instead. The remaining fourteen states have neither a comment nor have adopted a similar rule. A comparison of those 24 state’s adopted rules can be found here.
What You Can Do
The Christian Legal Society has been tracking each state’s response to the model rule, including information about how and where to email or otherwise send comments and concerns to the governing bodies responsible for enacting Rules of Professional Conduct in each state. Check out your state to see if action is being taken on Rule 8.4(g), and contact them to let them know your concerns. Even if you are not a lawyer, you may need access to legal services at some point in your life and be impacted by whether your attorney is able to freely advocate for you without worrying about facing viewpoint discrimination.
Further Reading
Professor Josh Blackman’s analysis of why disciplinary committees shouldn’t be trusted with so much discretion: “Model Rule 8.4(g) and the First Amendment: Trust the Disciplinary Committees”
Law Professor George W. Dent Jr.’s law article: “Model Rule 8.4(g): Blatantly Unconstitutional and Blatantly Political Political”
Attorney General Leslie Rutledge’s letter to a State Senator in Alabama, describing Rule 8.4(g)’s unconstitutionality:
A brief legal background of challenges to Rule 8.4: “The Criticism Surrounding ABA Amended Model Rule 8.4”
Comparison of state laws that do not have Model Rule 8.4(g): Comparison of State Black-Letter Rules to Model Rule 8.4(g
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