Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g)
21 Pages Posted: 4 Feb 2017 Last revised: 26 Apr 2017
Date Written: February 3, 2017
The American Bar Association has added an antidiscrimination provision to the Model Rules of Professional Conduct, making it professional misconduct for a lawyer to engage in harassment or discrimination on several bases “in conduct related to the practice of law.” But critics argue that Model Rule 8.4(g) raises serious First Amendment concerns. This Essay provides a partial defense of Model Rule 8.4(g) from a First Amendment perspective.
Using a conceptual framework of professional knowledge communities, this Essay examines the normative justifications underlying speech protection and the corresponding extent of permissible regulation in different contexts. So doing, it distinguishes “conduct related to the practice of law” from public discourse. When lawyers communicate with each other in “the practice of law,” they do not typically engage in public discourse. The regulatory efforts here occur in the space between the professional-client relationship and public discourse. This space is dominated by the interests of the knowledge community. Thus, outside of public dis-course, the justifications underlying First Amendment protection are generally compatible with a rule prohibiting discrimination in the practice of law. In public discourse, however, the interests underlying speech protection prohibit an expansive interpretation of “conduct related to the practice of law.”
Keywords: First Amendment, legal profession, professional ethics, professional speech, antidiscrimination, free speech clause, free exercise clause, workplace harassment law
JEL Classification: K10, K19, K20
Suggested Citation: Suggested Citation