The American Bar Association has proposed a new version of its Model Rule 8.4(g) that — if adopted by state bars or state supreme courts — would ban lawyers from engaging in “discrimination” and “harassment” (including through “verbal” conduct) on various grounds, including at “bar association, business or social activities in connection with the practice of law.” I’ve argued that this is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.
I also think that, even as to constitutionally unprotected conduct (such as discrimination in hiring and the like), these matters should be left to state and federal employment law, as defined by legislatures and by Congress, rather than being set up as state bar association or state supreme court rules: While lawyer actions with respect to judges, juries and witnesses in the courtroom, depositions and the like might be specially regulated by lawyer licensing authorities, employment law should apply (or not apply) equally to various businesses and professions, with no special rules for lawyers hiring (whether of secretaries, janitors or associates). That should be so, I think, for judgments about discrimination based on sexual orientation, marital status and the like. And it’s clearer as to discrimination based on socioeconomic status, which Rule 8.4(g) would forbid — in my view, inexplicably.
In any event, today the Montana Legislature passed a joint resolution condemning proposed Rule 8.4, in part on First Amendment grounds. This follows in the wake of a Texas attorney general opinion last December that concluded, “A court would likely conclude that Model Rule 8.4(g) infringes upon the free speech rights of members of the State Bar.” I hope this will help take some of the wind out of the pro-8.4(g) movement’s sails.
Thanks to Patrick Gould for the pointer.