ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment
27 Pages Posted: 17 Jan 2022
Date Written: January 14, 2022
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
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