Rule 8.4(g) and the First Amendment: Distinguishing between Discrimination and Free Speech

47 Pages Posted: 30 Aug 2018  

Rebecca Aviel

University of Denver Sturm College of Law

Date Written: August 30, 2018

Abstract

The ABA’s recent adoption of Model Rule 8.4(g), making it sanctionable for lawyers to engage in discrimination or harassment, has garnered a great deal of attention, much of it focused on whether the rule violates an attorney’s right to free speech. This article attempts to bring clarity to the discussion. It emphasizes the significance of claiming, as some have done, that the rule is facially invalid because it is overbroad, and then engages in the close textual analysis necessary to evaluate claims of overbreadth. This analysis yields important insight about how the rule might be revised to better reflect the crucial distinction between discrimination and harassment on the one hand and the expression of controversial viewpoints on the other. It then explains why the rule’s coverage of all conduct “related to the practice of law” is neither unprecedented nor particularly troubling against the existing back-drop of lawyer regulation and concludes with a few thoughts about the values most central to professional identity.

Suggested Citation

Aviel, Rebecca, Rule 8.4(g) and the First Amendment: Distinguishing between Discrimination and Free Speech (August 30, 2018). Georgetown Journal of Legal Ethics, Vol. 31, No. 31, 2018; U Denver Legal Studies Research Paper No. 18-31. Available at SSRN: https://ssrn.com/abstract=3241530 or http://dx.doi.org/10.2139/ssrn.3241530

Rebecca Aviel (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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