Reckless Abandon: The Shadow of Model Rule 8.4(g) and a Path Forward

Abstract

The ABA’s 2016 promulgation of Model Rule of Professional Conduct 8.4(g) has stoked an unnecessary culture war between the First Amendment and anti-discrimination. Thus far, the overarching trend of states has been to reject the rule in light of its potential infringement of lawyer First Amendment rights. Nevertheless the promulgation of the rule has led to the proliferation of legal scholarship that discards lawyer First Amendment rights in the shadow of defending Model Rule 8.4(g). This body of scholarship has dire potential consequences in diverse disciplinary and regulatory contexts and can be relied upon by state bars and judiciaries to punish lawyers without recourse to the First Amendment. By protecting lawyer speech, association, and petitioning, the First Amendment works to protect the lawyer’s role in the system of justice and cannot be discarded without undermining justice itself.

Importantly, neither the ABA nor the states needs to cut down the First Amendment to appropriately curb lawyer discrimination and harassment. The recent redrafting and adoption of anti-discrimination rules by Maine and New Hampshire demonstrate that drafting such a rule can be done without jettisoning the First Amendment rights of lawyers. Rather than continuing to inflame the culture war by forcing people to take sides in a false dichotomy between the First Amendment and anti-discrimination, the ABA and defenders of Model Rule 8.4(g) should own the constitutional deficiencies of the rule and work to redraft a constitutionally sound rule. Taking such a course would work to actually curb harassment and discrimination because an appropriately narrowed rule would be far more likely to be adopted by states and to remain law after enactment without constitutional challenge.

Keywords: Legal Ethics, Professional Responsibility, anti-discrimination rules, attorney first amendment rights, constitutional law, free speech, lawyer regulation