ABA Model Rule 8.4(g)

A Misguided Proposed Ethics Rule Change

History and Background

In July 2015, the ABA’s Standing Committee on Ethics and Professional Responsibility presented a working draft of amendments to the ABA’s Model Rules of Professional Conduct that directly addressed lawyer bias, prejudice, discrimination, and harassment in the black letter of the Rules. These amendments were drafted at the urging of the ABA’s Goal III Entities – the Commission on Disability Rights, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Sexual Orientation and Gender Identity, and the Commission on Women in the Profession. A couple of months later, in October 2015, the Commission on Sexual Orientation and Gender Identity sent a memo to the Standing Committee on Ethics and Professional Responsibility supporting adoption of a revised rule. The ABA adopted Model Rule 8.4(g) in August 2016. In adopting its new model rule, the ABA largely ignored over 480 comment letters, most opposed to the new rule, including letter from CLS Executive Director David Nammo regarding the problems with ABA Model Rule 8.4(g). Indeed, even the ABA’s own Standing Committee on Professional Discipline filed a comment letter questioning whether there was a demonstrated need for the rule and raising concerns about its enforceability, although the Committee dropped its opposition immediately prior to the House of Delegates’ vote.

To understand the issues surrounding ABA Model Rule 8.4(g) in a nutshell, watch the video by First Amendment scholar Professor Eugene Volokh, in which he explains why ABA Model Rule 8.4(g) is a speech code for attorneys. For a more in-depth discussion of ABA Model Rule 8.4(g), watch the debate held by The Federalist Society between Professor Volokh and Rob Weiner and the webinar presented by CLS in February 2017. The handout from the webinar is here. Additionally, Center Director Kim Colby wrote a memorandum discussing the pitfalls of ABA Model Rule 8.4(g).

On August 24, 2018, Kim Colby was featured on The Federalist Society Blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) and Matal v. Tam, 137 S. Ct. 1744 (2017).

The new proposed rule goes into effect, however, only when it is adopted in a state, so CLS has taken to opposing adoption of the model rule as various states consider it.

CLS’ Nationwide Efforts to Fight Adoption of ABA Model Rule 8.4(g) by the States and the District of Columbia

Shortly after the ABA adopted Model Rule 8.4(g), the ABA sent a letter to every state supreme court asking it to also adopt ABA Model Rule 8.4(g). The model rule, therefore, is on the radar of every state supreme court and is, in that sense, “under consideration.”

Each state may determine for itself whether to adopt ABA Model Rule 8.4(g). In 2016, when the ABA adopted the new model rule, it claimed that 24 states/jurisdictions already had a black-letter rule like ABA Model Rule 8.4(g), but that claim was not accurate. Twenty-four states had a rule that addresses “bias” in some way, but no state, had a rule as overly broad in scope as ABA Model Rule 8.4(g). Thirteen others had a more restricted comment rather than a black-letter rule. The remaining fourteen jurisdictions had neither a comment nor a black-letter rule.

Some states have already publicly proposed adoption of ABA Model Rule 8.4(g). CLS has filed a comment letter opposing adoption of ABA Model Rule 8.4(g) in every state in which CLS was aware of an open comment period.

Read CLS Executive Director David Nammo’s comment letters (listed in order of most recently submitted):

ABA Model Rule 8.4(g) in the States and the District of Columbia

Work needs to be done in all 50 states and the District of Columbia, regardless of whether a new rule has been publicly proposed there or not.

Some state bars or state supreme courts want to push ABA Model Rule 8.4(g), and CLS wants to help individuals in the states educate their state bars and state courts as to the immense problems posed by ABA Model Rule 8.4(g).

CLS has attorney members in almost all states and the District of Columbia. In several states, concerned attorneys have already succeeded in educating their peers as to the reasons why ABA Model Rule 8.4(g) should not be adopted in their state. Listed to the right are the states where CLS knows that there has been some talk or consideration of ABA Model Rule 8.4(g).

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