ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment

27 Pages Posted: 17 Jan 2022

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Rebecca Roiphe

New York Law School

Date Written: January 14, 2022

Abstract

The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many of the contexts in which the rule would apply. Rather than wading into the question of whether Rule 8.4(g) is constitutionally overbroad, we argue that state bars should not adopt a rule that comes close to that line.

Keywords: professional responsibility, legal profession, first amendment, free speech

Suggested Citation

Green, Bruce A. and Roiphe, Rebecca, ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment (January 14, 2022). Hofstra Law Review, Vol. 50, 2022, NYLS Legal Studies Research Paper No. 4009058, Available at SSRN: https://ssrn.com/abstract=4009058

Bruce A. Green

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-6851 (Phone)
212-636-6899 (Fax)

Rebecca Roiphe (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2804 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
198
Abstract Views
803
rank
210,861
PlumX Metrics