A BRIEF SYNOPSIS OF ABA MODEL RULE 8.4(g)
The ABA passed Model Rule 8.4(g) by voice vote in August. The committee then sent a letter to every state supreme court asking it to adopt ABA Model Rule 8.4(g). The model rule, therefore, is on the radar of every state supreme court and is, in that sense, “under consideration.” Click here to see the letter sent to Colorado.
The fight has moved to each state to determine whether to adopt the changes to the model rule as proposed by the ABA. Twenty-three states plus the District of Columbia already have a black-letter rule that addresses "bias" in some way, although none has it as currently proposed by the ABA. Thirteen states have a comment rather than a black-letter rule. The remaining fourteen states have neither a comment nor a black-letter rule.
Work needs to be done in all 50 states, regardless of whether a new rule has been proposed there or not. Some state bars or state supreme courts want to push the ABA Model Rule 8.4(g). CLS wants to help individuals in the states where the state bars or state courts are willing to be more careful. We know of several states in which this strategy is working.
CLS has been busy reaching out to attorney members in each of the 50 states and the District of Columbia asking them to serve as state monitors. We have also been busy developing resources and coordinating with other groups.
We have listed a few of the states on the right where we have filed a letter or are working through our local CLS representative to respond to changes to the state model rules.
We recommend the following resources as you continue to look into this matter:
The Pitfalls in the New ABA Model Rule 8.4(g)
Texas Attorney General Letter Concerning the Unconstitutionality of ABA Model Rule 8.4
CLS Letter to the ABA
New Rule 8.4: Threat or Menace
The Christian Lawyer Article: "The Evolution of the New ABA Model Rule 8.4(g)"
Comparison of State Black-Letter Rules to Model Rule 8.4(g)
Ronald D. Rotunda: "The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought"
Eugene Volokh: "A Speech Code for Lawyers, Banning Viewpoints that Express ‘Bias,’ including in Law-Related Social Activities"
AUGUST 12, 2016
We want to thank all CLS members who voiced their views to the ABA and its House of Delegates on the proposed Model Rule 8.4. Unfortunately, the proposal was approved by voice vote on Wednesday, August 10, 2016. While the drafters made substantial last-minute changes to the proposal that made it better, they did not address any of the alarming First Amendment and religious liberty issues. The Committee fixed the mens rea language and addressed the peremptory challenge problem, which had the unfortunate effect of appeasing all but those worried about the Constitutional issues.
The best response to this vote and this rule is from our friend David French at the National Review. You can see his article "A Speech Code for Lawyers" here.
We did want to encourage you and let you know that your voices were heard, despite the outcome. We think that nearly 75% of the correspondence to the committee came through CLS and most of the calls to delegates were from CLS members. We also believe that the positive changes to the Rule came in response to your work. The ABA tried to sweep this change under the rug and did not realize that so many people were watching and willing to voice their opposition. Various news outlets, including the New York Times, noted that CLS led the effort to fight this Rule change (although the articles never fully acknowledged the very real First Amendment dangers).
It is unfortunate that religious liberty and the right of people of faith are under attack, b rest assured that CLS will continue to work with you and others to protect our First Amendment rights as lawyers. As you can see from David French's article and the letter from Ed Meese that it cites, this Rule was specifically targeted at people of faith. For a simple primer on the dangers of the rule, you might want to read Professor Eugene Volokh’s piece that in the Washington Post as well.
Please know that the battle will now shift to the states as the local bar associations will decide whether to follow the ABA's lead on Model Rule 8.4(g). Right now, it is just a model rule, and it will not have any force unless a state adopts it. We hope you will continue to join CLS in opposing this effort. We are working on tools to help you fight this in your state.
Please join us in staying vigilant, and let us know if you hear something from your state bar association. We need your help and your eyes and ears. CLS will continue to resource you and others who do not want to see people of faith in our profession become a casualty of the current cultural shifts.
AUGUST 4, 2016
PLEASE NOTE: At the last minute, on August 3rd, the ABA revised the resolution that will be voted on next week, so some of the information below is new, having been revised by CLS on August 4 after we reviewed the new resolution. While the revised proposal is in many ways an improvement over the original, it still operates as a free-standing "speech code."
The Standing Committee on Ethics and Professional Responsibility of the American Bar Association has proposed an amendment to Model Rule 8.4 of the Rules of Professional Conduct. Because the ABA rules are frequently adopted by states, these proposed changes affect all lawyers, not just ABA members.
The proposed revision to Model Rule 8.4 will be voted on by the ABA House of Delegates on August 8 at the annual convention.
Proposed Rule 8.4 would provide that “it is professional misconduct for a lawyer to:
"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."
After the recent revision, the proposed rule:
1. Moves the non-discrimination language from the comments to the black-letter text of the rule;
2. Adds “ethnicity,” “gender identity,” and “marital status” as classes to be protected; and
3. Broadens the application of the rule to all “conduct related to the practice of law,” regardless of whether it is prejudicial to the administration of justice.
Because a lawyer might be disciplined for "harassment" or "discrimination," regardless of whether the conduct results in injustice, the rule still operates as a speech code that will have a chlling effect on lawyers' legitimate speech.
In short, the revision to the proposed rule change does not solve the primary problems with the proposed Rule 8.4:
- The proposed rule would infrnge on the free speech and free exercise rights of attorneys;
- The proposed rule limits historic lawyer autonomy in accepting and declining representation;
- The proposed rule, untethered as it is to any actual injustice or prejudice, would subject a lawyer to discipline in any conduct that might be considered "related to the practice of law," such as expression on CLE panels, membership in religous organizations, serving on boards of churches, and the like.
See the complete text of the Rule and report of the Ethics Committee.
The Standing Committee submitted the proposal for comments, and hundreds of lawyers commented, and the comments were overwhelmingly opposed to the proposed change. (To see the comments to the proposed rule, including the letter from the Christian Legal Society, go here). At the last minute (Wednesday, August 3), the Committee heeded the advice of the ABA Standing Committe on Discipline to re-insert a mens rea requirment and clariify the rule in other respects, but it ignored the free speech and religious liberty concerns in the comments.
The large book the delegates receive on all the resolutions omits any free speech or religious liberty concerns in its summary of the comments on Model Rule 8.4.
We urge you to contact your state's delegates to the ABA, whether you are an ABA member or not, and respectfully ask that they vote against this proposed rule change. Here are some of the issues that you may want to point out to your delegates:
1. The proposed rule raises enforceability and Constitutional concerns.
2. The proposed rule likely impinges on First Amendment rights of attorneys. It would have a chilling effect on speech, and it may subject a lawyer to discipline for serving on boards of religious institutions or for public speech on political, social, cultural, and religious topics.
See the discussion at pp. 5-14 of the CLS Letter.
3. Despite changes, the proposed rule would limit the autonomy of lawyers in accepting and declining representation and conflicts with current ethics rules.
For more on this issue, see section E of the Committee on Discipline Letter and pp. 3-4 of March 10, 2016 Christian Legal Society Letter to ABA Ethics Committee (“CLS Letter”).
4. In the context of professional relationships, the terms “harass” and “discriminate” are vague and overly broad, as is the proposed standard “in conduct relating to the practice of law.” This raises Constitutional concerns and enforceability issues.
See the discussion at pp. 5-14 of the CLS Letter and sections A, B, and D of the Committee on Discipline Letter.
5. The rule is not carefully drafted to avoid unintended consequences regarding employment issues, peremptory jury challenges, and socio-economic “discrimination.”
For example, law professor Eugene Volokh points out:
I can’t imagine, of course, that the drafters were indeed intending to ban law firms from preferring employees with higher-status educations or past employment history, or from preferring wealthier partners, or from giving a break to poorer would-be employees or clients. But that’s what the prohibition seems to cover. And if it isn’t meant to cover that, I’m not sure what exactly it is meant to cover, at least as applied to “the operation and management of a law firm” -- and in any event, its intended scope should be more clearly stated.
6. The proposal, according to the Resolution of the ABA Ethics Committee itself, is not prompted by any actual discrimination or concerned with correcting existing inequities in the administration of justice. It therefore is not a matter appropriate to the Rules of Professional Responsibility.
The Resolution admits that the rule change is proposed in order to “reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation” and cites no instances of injustice that the current rule has left unaddressed.
Please contact your delegates to the ABA and urge them to vote against this rule. CLS always opposes invidious discrimination, but the proposed rule creates rather than solves problems. Contact information for every state’s ABA delegates can be accessed here.