Vermont Quietly Adopts ABA Model Rule 8.4(g), Other States Should “Pause”

August 21st, 2017

Last week I received a call from a reporter at Law360 asking me to comment on the Vermont Supreme Court’s decision to adopt ABA Model Rule 8.4(g). Huh, I thought? I wasn’t even aware it was up for a vote. I checked with several other attorneys who were following the nationwide movement. They also were unaware.This vote also came as a surprise to the reporter, who has closely followed this reform.

In fact, the public comment period closed in March, with zero public comments submitted. The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” With that, Vermont is now the first state in the nation to adopt the ABA Model Rule. Will other states fall in line?

I already submitted a comment to the Nevada Supreme Court, and have submitted another comment to the Louisiana State Bar Association. The rule, as I discuss in my article, has serious First Amendment problems, and will force lawyers to either self-censor their speech or risk disciplinary action. These states should pause, and not reflexively back something simply because it concerns discrimination. In my article and letters, I propose alternatives to eliminate discrimination, without chilling speech.

As I noted in the Law360 interview:

Others have criticized the rule’s “related to the practice of law” language as vague and a potential overreach into areas of lawyers’ lives that shouldn’t be subject to professional misconduct rules.

“Opposing this rule is very difficult because that’s supposed to mean you’re supporting discrimination,” [Blackman] said. “For a lot of people, it’s just easier to support than consider the hard First Amendment questions it raises.”

To date, a number of states have opposed this rule.

In April, the Montana state legislature passed, by a wide majority, a resolution opposing adoption, saying the rule violates the First Amendment and the state constitution. Texas Attorney General Ken Paxton also issued an advisory opinion saying the ABA rule, if adopted, would likely be struck down as overly broad and unconstitutional.

After South Carolina bar delegates and state regulators came out against Rule 8.4(g), the state Supreme Court in June turned down the ABA rule adoption request. The Illinois State Bar Association also opposed adoption of the anti-bias rule last year, citing member concerns about vagueness and off-target application by regulators.

I hope Vermont does not start a new precedent.