December 2016
Status –The Texas Attorney General issued an advisory opinion that ABA Model Rule 8.4(g), if adopted in Texas, would likely be found unconstitutional
The Texas Attorney General issued an advisory opinion in December 2016 finding that ABA Model Rule 8.4(g) is unnecessary to protect against prohibited discrimination in the State of Texas and, were it to be adopted, a court would likely invalidate it as unconstitutional.
Current Rule 5.08 Prohibited Discriminatory Activities
(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.
(b) Paragraph (a) does not apply to a lawyer's decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as confidential information under these Rules. See Rule 1.05(a),(b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:
(i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and
(ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.
Comment
1. Subject to certain exemptions, paragraph (a) of this Rule prohibits willful expressions of bias or prejudice in connection with adjudicatory proceedings that are directed towards any persons involved with those proceedings in any capacity. Because the prohibited conduct only must occur “in connection with” an adjudicatory proceeding, it applies to misconduct transpiring outside of as well as in the presence of the tribunal’s presiding adjudicatory official. Moreover, the broad definition given to the term “adjudicatory proceeding” under these Rules means that paragraph (a)’s prohibition applies to many settings besides conventional litigation in federal or state courts. See Preamble: Terminology (definitions of “Adjudicatory Proceeding” and “Tribunal”).
2. The Rule, however, contains several important limitations and exemptions. The first, found in paragraph (a), is that a lawyer’s allegedly improper words or conduct must be shown to have been “willful” before the lawyer may be subjected to discipline.
3. In addition, paragraph (b) sets out four exemptions from the prohibition of paragraph (a). The first is a lawyer’s decision whether to represent a client. The second is any communication made by the lawyer that is “confidential” under Rule 1.05(a) and (b). The third is a lawyer’s communication that is necessary to represent a client properly and that complies with applicable rulings and orders of the tribunal as well as with applicable rules of practice or procedure.
4. The fourth exemption in paragraph (b) relates to the lawyer’s words or conduct in selecting a jury. This exemption ensures that a lawyer will be free to thoroughly probe the venire in an effort to identify potential jurors having a bias or prejudice towards the lawyer’s client, or in favor of the client’s opponent, based on, among other things, the factors enumerated in paragraph (a). A lawyer should remember, however, that the use of peremptory challenges to remove persons from juries based solely on some of the factors listed in paragraph (a) raises separate constitutional issues.