In September, the American Bar Association approved Model Rule 8.4(g), which provides that:
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.
As I explained in my (rejected) proposal to the AALS Diversity Panel, this rule poses serious threats to academic freedom and law school pedagogy. The response to my criticism has been, generally, trust the disciplinary committees to enforce this law consistently with the First Amendment.
During the Rosenkranz Debate, Professors Eugene Volokh and Deborah Rhode discussed Rule 8.4. At 48:35, moderator Judge Elrod asked:
In our own profession, we have had increased regulation of harassing speech and conduct in the ABA Model Rule 8.4. Is that a narrowly tailored way to address an issue in our profession?
Volokh, to some applause, replied “No.” He offered this hypothetical (by my rough transcription):
If the Federalist Society were to put on a CLE debate, which was related to the practice of law . . . and a lawyer spoke out and said “I am against same-sex marriage because I thinks homosexuality is wrong, and the [Supreme] Court was wrong to accept that.” Under the proposed rule, someone may file a complaint. Maybe the Bar would find some way of dismissing that. But . . . it could find this is indeed harassment. . . . It is not clear if Rule 8.4 requires severity or pervasiveness. Once you accept the notion that it is okay to impose these viewpoint based restrictions on supposedly bad speech in the employment context, it’s easy enough to say that [the rules apply to] social and bar functions related to the practice of law, or even conservations over dinner at a law-related function. This is deliberate on the part of the bar . . . This is deliberately an attempt to suppress particular derogatory views in a wide-range of conduct, expressly including social and bar-association activities. They are getting exactly what they are intending. They are intending to suppress particular views in these kinds of debates.
Professor Rhode responds at 52:00, and explains that she doesn’t anticipate that bar disciplinary committees will punish speech that is protected by the First Amendment.
I teach legal ethics and from what I know about bar disciplinary agencies, they don’t have enough resources to go after people who steal from their client trust fund accounts. The notion that they are going to start policing social conferences and go after people who make claims about their own views about the religious status of sexual orientation [sic] seems to me wildly out of touch with the realities. Bar associations don’t want to set off their members and go down those routes and many people who are in bar disciplinary agencies care a lot about First Amendment values. Sure, someone might file a complaint. But, we can say that about pretty much anything in this country, right? That’s not enough to deter us from taking appropriate actions. My own view on 8.4 it is that is a largely symbolic gesture. It doesn’t get at much that you couldn’t have gotten at other ways, through employment, through curbs on civility. But I think the reason why proponents wanted it in the Code was as a matter of educating the next generation of lawyers as well as a few practitioners in this one about other values besides First Amendment expression. We as a profession have the capacity to deal with occasional abuses, I’m not sure this Rule is going to spark a lot of them. We’re a profession that knows better than that. I would hope.
— Josh Blackman (@JoshMBlackman) November 19, 2016
At 53:50, Judge Elrod replied that Professor Rhode’s view was premised on the belief these agencies can in fact be trusted:
That would depend on a trust, we would be trusting that the organizations would not be going after people that they don’t like, such as . . . conservatives. We would have to just trust them . . .
Amid laughter among the Federalist Society crowd, Professor Rhode interjected:
And the Courts! My god, I never thought I’d have to say this at a Federalist Society conference, the Rule of Law people, it’s still out there! I don’t think we’d see a lot of toleration for those aberrant complaints.
In other words, trust the bar and the courts to ensure speech is protected.
In a forthcoming piece in the Georgetown Journal of Legal Ethics, Professor Stephen Gillers takes a similar “Trust-Us” approach with respect to Rule 8.4(g) and the First Amendment. Gillers writes that attorneys routinely have their speech restricted (p.42):
Preliminarily, we should recognize that even today the Model Rules contain provisions limiting speech. Rules 1.6(a) and 1.9(c) forbid lawyers to reveal confidential information about a client and former client. Rule 3.4(e) limits what a lawyer may say or “allude to” at trial. Rule 3.4(f) forbids lawyers to ask most witnesses not to cooperate with an adversary. Rule 3.6 limits what a lawyer associated with a matter before a tribunal may say to the media. Rule 4.2 forbids certain communications with another lawyer’s client. Rule 8.2(a) says lawyers may not knowingly or with reckless disregard make certain false statements about judges and judicial candidates. Courts, using an objective standard of what a reasonable lawyer would or should know, have upheld Rule 8.2(a). Each of these rules subordinates the right to speak in order to protect the fairness of and public confidence in the legal system, just as Rule 8.4(g) does. Rule 4.2 does so by preventing an opposing lawyer from taking advantage of another lawyer’s client by questioning the client in her lawyer’s absence. Rule 3.4(e) ensures that irrelevant but possibly inflammatory evidence is not introduced at trial.
All of these rules, which do limit speech, relate to the representation of a client or actual legal proceedings. In contrast, the commentary to Rule 8.4(g) makes patent that it applies beyond the representation of a client.
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.
I explained in my (rejected) AALS proposal that this provision would constrain classroom discussions–which are indeed designed to prepare students for the practice of law–concerning religious liberty, same-sex marriage, abortion, immigration, and a host of other topics.
First, a professor explains that the Supreme Court’s decision in Obergefell v. Hodges, recognizing a right to same-sex marriage, has no grounding in the text or history of the Constitution. A student feels that such a lecture is “demeaning” to the LGBT community. Indeed, the majority decision in that case stated that the Constitution affords “dignity” in the form of marriage equality. Thus, criticizing the decision is denying dignity on the basis of sexual orientation. Second, a professor explains that the President’s executive action on immigration is unconstitutional, and that aliens without lawful presence should be removable under statutory law. A student feels that such a lecture is “demeaning” to her noncitizen parents on the basis of their national origin. Third, a professor explains that even under the principles of [Auer] deference, the term “sex” in Title IX (enacted in 1972) cannot be construed to prohibit discrimination on the basis of gender identity. A student feels that such a lecture is “derogatory” to transgender students. Fourth, a professor contends that affirmative consent laws violate due process. A student, a victim of abuse, finds the lecture “demeaning” on the basis of sex. I could go on, but you get the point. A range of academic theories would be silenced in the classroom under the threat of an unconstitutionally vague standard of “harassment.” These examples should also illustrate another implication of this rule: right-of-center viewpoints in the classroom are at risk of being censored by Rule 8.4(g). Lectures extolling Obergefell, executive action on immigration, anti-discrimination laws, and affirmative consent regimes would not be deemed “derogatory” or “demeaning.”
In the era of safe-spaces and trigger warnings, a reasonable untenured law professor could certainly worry that an offended student would file a frivolous bar complaint. While a complaint with the university would be handled internally–with the protections of academic freedom and tenure (which I don’t have quite yet)–a bar complaint would be litigated at the risk of personal reputation and finances. The chilling effect is real. Not for me–I tend to say and write whatever I want–if you couldn’t already tell–but other professors may not be so inclined.
Like Rhode, Gillers is not worried about this threat of sanction chilling speech. He writes:
We can be confident that the kind of biased or harassing speech that will attract the attention of disciplinary counsel will not enjoy First Amendment protection. FN 156
FN 156 See, e.g., Florida Bar v. Martocci, 791 So.2d 1074, 1077 (2001) (discipline imposed where “[t]he entire record is replete with evidence of Martocci’s verbal assaults and sexist, racial, and ethnic insults”) for an example of speech that does bring discipline.
Martocci, which concerned awful comments a lawyer made during a family-law matter, does not provide a basis to understand how disciplinary committees will enforce Rule 8.4(g). The Florida rule at issue applied with respect to “conduct in connection with the practice of law,” while the model rule is much broader, and applies to “social activities in connection with the practice of law.” Other cases cited in Footnote 21 (from Wisconsin, Washington, and Indiana) and the Appendix (California, Puerto Rico, New York 1, New York 2, New York 3, and Maryland) each involved conduct during the representation of a client–such as during a trial, deposition, or at the court. (One outlier case from Minnesota involved an adjunct law professor who engaged in physical conduct of a sexual nature with a student he was supervising–this is not a mere case of verbal harassment). I was unable to find a single case, in any jurisdiction, where a lawyer was sanctioned for an offensive comment made at a social function. I doubt such a case exists. The new model rule is unprecedented. But once a jurisdiction adopts Rule 8.4(g), some lucky attorney can become a test case.
This is not to say that attorneys should have free-reign to say whatever they wish, anywhere. During the Rosenkranz debate (at 51:18), Volokh took a position similar to mine: the Bar association should ensure that judicial proceedings are civil:
Now, I actually support the notion of civility rules, certainly in the court room. I would imagine any judges in the audience would enforce quite rigid civility rules in their courtroom, and rightly so. I think it would make sense for the bar to require that when you’re talking about interaction with opposing counsel in certain kinds of contexts, especially with witnesses and the like. But this is deliberately an attempt to go beyond that. It is deliberately an attempt to suppress particular derogatory views in a wide range of contexts, expressly including social and professional activities. Well, I think what they’re getting is exactly what they’re intending. They’re intending to suppress particular views in these kinds of debates.
Social activities, outside any client matter, are different, and should not be subject to the bar’s coercive powers.
— Josh Blackman (@JoshMBlackman) November 19, 2016
In response, Professor Rhode explained, quite candidly, what she thought the true purpose of Rule 8.4 was: it was “a matter of educating the next generation of lawyers as well as a few practitioners in this one about other values besides First Amendment expression.” Lawyers would now face discipline if they refuse such reeducation.