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Ethics: Model Rule 8.4(g), Unconstitutional Limits on Attorney Expression, and 2020 ABA Ethics Committee Comments

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, April 20, 2022

Recorded event now available

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This CLE course will review the continued efforts by the ABA and many state bars to regulate against "harassment" and "discrimination" in an attorney's speech or conduct, the debate over ABA Model Rule of Professional Responsibility 8.4(g), and when a state can legitimately regulate an attorney's speech related to the practice of law. After a federal district court in Pennsylvania issued a preliminary injunction against one state's attempt to regulate such speech and conduct, Greenberg v. Haggerty, Case No. 20-3822 (E.D. Penn. Dec. 8, 2020), the ABA and some state bar associations issued clarifications. Whether those statements make any substantive difference remains to be seen.

Description

In 2016, the American Bar Association proposed Model Rule 8.4(g), which makes it professional misconduct to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on 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." ABA Model Rule 8.4(g).

The rule utilizes a broad definition of "conduct related to the practice of law," which includes not only "representing clients; interacting with witnesses" and other in court activities, but also "participating in bar association, business, or social activities in connection with the practice of law." Id. Comment 4.

Only Vermont adopted Rule 8.4(g) wholesale. Pennsylvania and New Mexico have adopted versions of the rule, but the Pennsylvania rule was held to likely be unconstitutional in Greenberg v. Haggerty. In response, the ABA ethics committee issued an opinion in 2020 narrowly interpreting Rule 8.4(g) to exclude comments on "issues of public concern" and suggesting that the rule applies only where comments are directed at specific persons.

Whether or not this cured any constitutional defect, many still contend the rule fails to promote confidence in the legal profession and still fails constitutional muster.

Listen as this panel of First Amendment experts discusses the regulation of attorney speech, the legality of Model Rule 8.4(g), and what Greenberg v. Haggerty teaches going forward.

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Outline

  1. Regulation of lawyer speech
  2. History of Rule 8.4(g)
  3. Constitutional concerns under Rule 8.4(g)
    1. Due process
    2. First Amendment free expression
    3. Freedom of association and religion
    4. Vagueness
  4. Understanding when speech or conduct is or is not "related to the practice of law"
    1. NIFLA and the regulation of occupational speech
    2. Commercial issues
    3. Political speech

Benefits

The panel will review these and other key issues:

  • What is the difference between regulating conduct and speech in light of the Supreme Court's decision in NIFLA v. Becerra, 138 S. Ct. 2361 (2018)?
  • What do critical terms in Model Rule 8.4(g) mean?
  • Did the ABA 2020 Ethics Committee comments make any difference in the scope or constitutionality of the model rule?
  • What are the First Amendment concerns that Model Rule 8.4(g) raises?
  • How the rule might be revised to obtain its goals

Faculty

Blevins, Ethan
Ethan W. Blevins
Attorney
Pacific Legal Foundation

Mr. Blevins litigates cases involving the First Amendment, property rights, and the separation of powers.

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Eckler, Donald
Patrick Eckler
Partner
Freeman Mathis & Gary

Mr. Eckler’s practice has evolved from primarily representing insurers in coverage disputes to managing complex...  |  Read More

Ortner, Daniel
Daniel M. Ortner
Attorney
Pacific Legal Foundation

Mr. Ortner joined Pacific Legal Foundation in the fall of 2018, focusing on the First Amendment, property rights,...  |  Read More

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