'Breathing Space to Survive' — The Missing Component of Model Rule 8.4(g)

Abstract

It’s been over five years since the ABA promulgated Model Rule of Professional Conduct 8.4(g), and it has largely fallen flat. The major problem with Model Rule 8.4(g) is that it does not leave lawyers the “breathing space” required by the First Amendment. Harassment, discrimination, and inequality are dire problems in the United States and should be addressed and remedied. One can understand the laudable motive of eradicating anything that can be considered such in the legal profession. But broad prohibitions on speech do not comport with the First Amendment, are unlikely to be adopted, and, even if adopted, will be subjected to constitutional challenge and likely invalidated. Micromanagement of expressive activities — even among the legal profession — will not and should not survive First Amendment scrutiny and is also entirely unworkable in practice. Additionally, such micromanagement of expression tends towards discriminatory enforcement against those who are unpopular, who express unpopular views, or who fail to vigilantly guard their tongues.


More importantly, giving lawyers the constitutionally requisite “breathing space” is essential for the proper functioning of the lawyer in our system of justice. Indeed, the concept of “breathing space” is an established precept in the U.S. Supreme Court’s recognition and interpretive scope of lawyer First Amendment rights. In promulgating Model Rule 8.4(g) and Formal Opinion 493, the ABA failed to give heed to this core principle in several key contexts, thereby depriving lawyers of the requisite breathing space in the actual practice of law, in public discourse, at the workplace, and even in lawyers’ personal social activities. Breathing space is an essential aspect of each of these facets of a lawyer’s life and practice and is protected by the First Amendment. Moreover, clients need their lawyers to have breathing space — to be able to engage in cause lawyering, to be able to fully and frankly discuss the objectives of the representation and the issues involved even if such may involve discussion of matters that are derogatory or demeaning or manifest bias on one of the protected bases. By failing to provide breathing space, the Model Rule fails to serve its role as a model for states of a workable and constitutionally sound anti-discrimination and anti-harassment rule. Recent rules in New Hampshire, Maine, and Connecticut, and a proposal in New York, all make strides to regulate “with narrow specificity” as NAACP v. Button requires, providing essential breathing space, and each can serve as an actual “model rule” to other states that want to enact an anti-harassment or anti-discrimination rule that both protects lawyers’ First Amendment rights while also working to curb harassment and discrimination in the legal profession.

Keywords: Professional Responsibility, Lawyer First Amendment Rights, Lawyer Regulation, First Amendment, Antiharassment, Antidiscrimination, Rules of Professional Conduct, Model Rule of Professional Conduct 8.4(G), Aba Formal Opinion 493, Constitutional Law, Breathing Space, Lawyer Discipline, Free Speech