In my new article in the Georgetown Journal of Legal Ethics, I urge state courts to “pause” before adopting ABA Model Rule 8.4(g). This provision raises significant First Amendment issues, in that it punishes certain types of speech in forums completely disconnected from the provision of legal services. Since the article was published, the states have begun to reject the proposal. The Texas Attorney General has flat-out said the rule would be unconstitutional. Pennsylvania rejected it, as did Montana.
Now, Nevada may become the first state to adopt this rule. The Board of Governors of the State Bar of Nevada has petitioned the Nevada Supreme Court to adopt Model Rule 8.4(g). The Nevada Supreme Court requested public comments on the petition, and scheduled a public hearing on July 17, 2017.
I have submitted a letter opposing the petition, as well as copies of my new article. Here is the text of the letter:
I write in response to In the Matter of Amendments to Rule of Professional Conduct 8.4 (ADKT No.: 0526), which was filed on May 8, 2017. The Board of Governors of the State Bar of Nevada petitioned the Supreme Court of Nevada to amend its Rule of Professional Conduct 8.4 to include the American Bar Association’s Model Rule of Professional Conduct 8.4(g). This proposed rule raises significant First Amendment issues. Moreover, this Court should take no solace in the fact that, as the petition notes, there has not been “significant First Amendment litigation” over anti-discrimination rules adopted in other jurisdiction. Respectfully, this claim is a non-sequitur. Rule 8.4(g) has an unprecedented scope. It disfavors the expression of certain viewpoints in forums completely disconnected with the servicing of clients or provision of legal services. I explain these arguments at length in my recently-published article in Volume 30 of the Georgetown Journal of Legal Ethics, titled Reply: A Pause for State Courts Considering Model Rule 8.4(g), The First Amendment and “Conduct Related to the Practice of Law.” For your convenience, I have enclosed eight copies of the article, which can also be downloaded at https://ssrn.com/abstract=2888204.
Over the past two decades, nearly three dozen jurisdictions have amended their local version of Rule 8.4 to prohibit discrimination, harassment, or other forms of bias against specifically defined groups. With few exceptions, these rules only govern conduct within the three heads of conduct reached by Rule 8.4(a)–(f). First, the narrowest category regulated bias during the representation of a client or in the practice of law. This standard is set by fifteen states in their rules, and ten states in their comments. Second, a far broader standard regulates bias that implicates a lawyer’s fitness to practice law, whether or not it occurs in the practice of law. Only two states impose this standard in their rules. Third, the broadest, most nebulous standard at issue prohibits bias that would prejudice the administration of justice. This standard, which can reach conduct entirely outside the client-lawyer relationship or the practice of law, is imposed by seven states. None of these jurisdictions provide a precedent for the Rule 8.4(g).
Three jurisdictions have adopted far broader scopes to their anti-bias provisions. First, Indiana regulates such misconduct when “engage[d] . . . in a professional capacity.” Second and third, Washington state and Wisconsin both regulate such misconduct that is committed “in connection with the lawyer’s professional activities.” None of these rules define “professional capacity” or “professional activities.” Yet, these three provisions still have a concrete nexus to delivering legal services, and do not purport to reach “social activities,” such as bar-sponsored dinners that are merely “connected with the practice of law.” Rule 8.4(g) is unprecedented in its scope. Efforts to cite precedents from these states as evidence that Rule 8.4(g) would not censor protected speech are unavailing. Because they are far more circumscribed, it is unsurprising that they have not given rise to litigation.
To avoid the chilling, and potential infringement, of protected free speech, the Nevada Supreme Court should deny petition #0526. It would be my pleasure to provide any further insights to inform your deliberations.
There are many reasons not to adopt this provision. If Nevada wants to combat discrimination in the profession, it can adopt a more narrowly-tailored rule along the lines I discuss in my article.