History & 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. 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.
The new proposed rule goes into effect, however, only when it is adopted in a state.
To understand the issues surrounding ABA Model Rule 8.4(g) in a nutshell, watch this two-minute video by First Amendment scholar Professor Eugene Volokh, in which he explains why ABA Model Rule 8.4(g) is a speech code for lawyers, and read CLS Executive Director David Nammo’s letter to the ABA Ethics Committee regarding the problems with ABA Model Rule 8.4(g).