New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship

Abstract

New Model Rule of Professional Conduct 8.4(g)’s passage marks the triumph of certain constituencies within the American Bar Association in elevating the subject of lawyer bias to ethical significance on par with other subjects with which the Model Rules have long been concerned, even the administration of justice itself. Comprehensive legislative histories being useful to scholars and others, this article presents that of the new model rule. The article focuses in particular upon, but is not limited to, the rush of events that culminated in passage of the new model rule at the August 2016 ABA annual meeting – a rush that left many substantive issues unresolved. With the legislative history as a backdrop, the article addresses several of the afflictions that beset the new model rule: terminology uncertainties, questions of interplay between the new model rule and other provisions of the Model Rules, what disciplinary sanction should apply to the new model rule, and constitutional issues of Due Process and First Amendment free expression. Absent rigorous resolution of the many outstanding issues, the article concludes, the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.

Keywords: Legal Ethics, Anti-Bias, 8.4(g), Due Process, First Amendment, Discrimination, Harassment

JEL Classification: K10, K20, K40, K42