Today I submitted a letter in response to the Supreme Court of Tennessee’s request for public comments concerning the adoption of ABA Model Rule 8.4(g). My letter provides four recommendations of how the proposed rule can be modified to avoid chilling speech under the First Amendment.

The proposed RPC 8.4(g) adopts ABA Model Rule 8.4(g) and comment [3] in their entirety. There are three additions, which I applaud.

First, the proposed comment [4] offers a definition of the phrase “legitimate advocacy” for the proposed RPC 8.4(g):

Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of the law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer acts as an advocate, such as litigation.

This comment could be improved by providing some context of what those non-traditional settings are. This sentence, which I suggest in my article, would suffice: “For example, this Rule does not apply to speech on matters of public concern at bar association functions, continuing legal education classes, law school classes, and other similar forums.’” This addition would clarify that an attorney’s speech in the context of a lecture, debate, or CLE class, on a matter of public concern, would not amount to disciplinable conduct.

Second, proposed comment [4a] includes additional protections for free speech. It provides:

[4a] Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

I also applaud this addition. It could be improved even further by replacing the first sentence with one used in an earlier draft of ABA Model Rule 8.4(g) from 2015, but was ultimately removed (see pp. 248-49 of my article).  The comment provides: “This Rule does not apply to conduct protected by the First Amendment, as a lawyer does retain a ‘private sphere’ where personal opinion, freedom of association, religious expression, and political speech is protected by the First Amendment and not subject to this rule.” Making this change would clarify that not only are values of free speech protected, but also those of freedom of association, as well as freedom of exercise.

Third, proposed comment [5b] excludes a provision that was included in ABA Model Rule 8.4(g):

A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a).

Rather, comment [5d] expands on this sentiment by clarifying that charging fees does not amount to discrimination on the basis of socioeconomic status:

Nevertheless, a lawyer does not engage in conduct that harasses or discriminates based on socioeconomic status merely by charging and collecting reasonable fees and expenses for a representation.

I applaud this addition, which retains the right of an attorney to set “reasonable fees,” without fear of a bar complaint.

Beyond these three revisions, my letter offers a fourth recommendation: the proposed comment [3] should be amended to clarify that for discrimination or harassment to fall within Rule 8.4(g), it must be “severe or pervasive.” Along these same lines, the rule should stress that the law of antidiscrimination and anti-harassment statutes “will,” and not “may” guide application of the paragraph. There is a well-established body of federal caselaw that disciplinary committees should rely on when determining if there has been discrimination or harassment. This tweak would also put all parties on notice of the relative burdens of proof. Here is a proposed redline of the revised comment [3]:

“Severe or pervasive” discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of federal antidiscrimination and anti-harassment statutes and case law may will guide application of paragraph (g).

Making the revisions suggested in this letter will allow the Tennessee Supreme Court to pursue the important purpose behind Rule 8.4(g), but do so consistently with the First Amendment.