American Bar Association (ABA) Model Rule of Professional Conduct 8.4(g) proscribes discrimination and harassment by lawyers in their legal practice. A useful question when examining this rule is: What is it that a lawyer would want to say or do, related to the practice of law, that is prohibited by Model Rule 8.4(g)?
Alleged flaws in the language of Model Rule 8.4(g) are creatively propounded in law school hypotheticals and speculatively identified in law review articles. And various interest groups attack Rule 8.4(g) as a vehicle to further their sincerely held but possibly bigoted beliefs. However, no one has directly answered this question.
Some in the field of professional responsibility (lovingly self-identified as “legal ethics nerds”) have proclaimed that Model Rule 8.4(g) is essentially a dead letter. Yet, in a move that brings to mind Mark Twain’s quotation “[t]he report of my death was an exaggeration,” the New York judiciary in June 2022 adopted an amended Model Rule 8.4(g).
Moreover, a debate continues about the text of Model Rule 8.4(g) versus the intent and purpose of Model Rule 8.4(g), presuming one is more important than the other. In the “Chair’s Introduction” to the Commission on Evaluation of the Rules of Professional Conduct (“Ethics 2000”), Chief Justice E. Norman Veasey, Delaware Supreme Court, expressed the “fervent hope that the goal of [state] uniformity [would] be the guiding beacon” in adopting the Model Rules. However, it was never expected—and history has demonstrated—that no state has adopted the ABA Model Rules of Professional Conduct in toto or uniformly individually, but the degree of uniformity that has been achieved has made professional responsibility law a more comprehensible national practice.
There was hope when Model Rule 8.4(g) was approved by the ABA House of Delegates in August 2016 that states would quickly adopt it. However, proponents realistically knew the history of states’ lengthy deliberation when adopting changes to state rules of professional conduct.
Moreover, the organized campaign by specific religious special interest groups to oppose the rule by distorting it for their own agenda foretold of the crusade against Model Rule 8.4(g). This polarization, what the late Supreme Court Justice Antonin Scalia called a Kulturkampf, has expanded exponentially since 2016. It is perhaps too facile to say that the origin of this opposition precisely demonstrates the need for the rule.
Despite the political background noise, Model Rule 8.4(g) has succeeded in propelling the discussion; less successful has been the goal of uniformity—but such has been the case with many of the Model Rules.
Since 2016, 11 states have revised their rules in conformity with Model Rule 8.4(g), while eight states declined to amend their rules regarding discrimination and harassment. Four states are in the process of reviewing possible amendments. Thus, a total of 23 states have been prompted to act because Model Rule 8.4(g) was adopted by the ABA. Moreover, many of the 25 states with some form of rule or comment addressing the issue are among those reviewing their existing rule.
More disheartening is that, despite the adoption of Model Rule 8.4(g), there are still at least ten states with nothing in their rules of professional conduct addressing harassment or discrimination. More encouraging is that discussion continues. New York adopted a revised version of the rule in June 2022. Pennsylvania’s Supreme Court has continued in its efforts to adopt a version of Model Rule 8.4(g). In fall 2022, the matter is pending before the U.S. Court of Appeals for the Third Circuit. The ABA filed a brief as amicus curiae in support of the Pennsylvania Bar and Model Rule 8.4(g). The ABA brief responds partially to the opening question:
There is no legitimate reason for an attorney to knowingly engage in harassment or discrimination in conduct related to the practice of law, whether taking a deposition or supervising an associate. The same is true of an attorney while presenting or attending a CLE program, participation in which is required of lawyers by many states, including Pennsylvania. Similarly, no lawyer has a First Amendment right to harass other lawyers, clients or participants in court proceedings or in CLE programs on the basis of their sex, race, religion or other protected characteristics. Rule 8.4(g) does not demand that lawyer speech be polite, politically acceptable or, as the district court suggested, “within the bounds of permissible cultural parlance.” Rather, the Rule is a reasonable, limited, and necessary addition to the Pennsylvania Rules that makes clear that harassment or discrimination is misconduct, not just in the courtroom but also in other law practice settings.
Connecticut adopted a version of Model Rule 8.4(g) effective January 1, 2022, and the U.S. District Court for the District of Connecticut dismissed a challenge to the Connecticut rule. The Colorado Supreme Court upheld Rule 8.4(g) in a disciplinary matter:
We conclude that Rule 8.4(g) serves the state’s compelling interests in regulating the conduct of attorneys during the representation of their clients, protecting clients and other participants in the legal process from harassment and discrimination, and eliminating expressions of bias from the legal process. The Rule is sufficiently narrowly tailored to serve these interests while limiting as little speech as possible. Moreover, Rule 8.4(g) is neither overbroad nor unconstitutionally vague. Thus, we conclude that the Rule is constitutional.
In the Pennsylvania and Connecticut court cases, the discussions deal only with speculation and hypotheticals—no factual case or controversy.
The Colorado court ruled in an actual disciplinary action. Lawyer Robert E. Abrams wrote to his clients that the judge assigned to their case was “a gay, fat, f[*]g, now it’s out there.” The Colorado Supreme Court rejected Abrams’s vagueness attack on the Rule. “Any objective person would find that Abrams’s specific use of an anti-gay slur in communicating with his clients about the presiding judge violated Rule 8.4(g). The word is pervasively understood as an anti-gay slur.”
The Colorado Supreme Court concluded by quoting the disciplinary hearing board:
“In his private life, [a lawyer] is free to speak in whatever manner he chooses. When representing clients, however, [a lawyer] must put aside the schoolyard code of conduct and adhere to professional standards.” Abrams, 459 P.3d at 1241. The professional standards required by Colo. RPC 8.4(g) serve the state’s compelling interests in regulating the legal profession, eliminating expressions of bias from the legal process, and protecting clients. The Rule is narrowly tailored to serve those interests and is neither unconstitutionally vague nor overbroad.
This returns the discussion to this article’s opening question: “What is it that a lawyer would want to say or do, related to the practice of law, that is prohibited by Model Rule 8.4(g)?”
Prior to the creation of Model Rule 8.4(g), Model Rule 8.4 contained Comment [3], which stated:
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) [engage in conduct that is prejudicial to the administration of justice] when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
The drafting of Model Rule 8.4(g) did not start with a blank page but began by taking Comment [3] as a starting point. In hindsight, this may have been an obstacle. But it is important to remember that the Preamble and Scope to the Model Rules specifically states that “[c]omments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. . . . The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.”
In October 2014 an informal Rule 8.4 Working Group was formed by the ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) as a result of several months of discussions with SCEPR and the ABA Commissions on Women in the Profession; Sexual Orientation and Gender Identity; Disability Rights; and Racial and Ethnic Diversity in the Profession.
The guiding principle of the discussions was better implementation of ABA Goal III (Eliminate Bias and Enhance Diversity) with the following objectives:
Moreover, the ABA Model Code of Judicial Conduct Rule 2.3 (Bias, Prejudice, and Harassment) offered guidance:
A. A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
B. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
C. A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
D. The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.
With little record of disciplinary action based upon conduct prejudicial to the administration of justice as described in Comment [3], there was increasing awareness of unprofessional conduct that was discriminatory and harassing. SCEPR determined that a tipping point had been reached and that a black-letter rule was needed.
In July 2015, SCEPR released and broadly distributed a working draft of Model Rule 8.4(g) for comment and discussion at the 2015 ABA Annual Meeting. Thereafter, the received input was reviewed and analyzed. After several rounds of discussions and revisions, a new draft with proposed comments was circulated in December 2015 far and wide, including to the members of the ABA House of Delegates, with an invitation to a public hearing at the 2016 ABA Midyear Meeting in February. Again, input was taken, debated, and incorporated into what became Resolution 109, presented to the ABA House of Delegates Annual Meeting in August 2016. Resolution 109 was further amended in the days prior to the House of Delegates meeting. The Revised Resolution 109, co-sponsored by seven ABA entities and supported by 25 ABA entities, 14 former ABA presidents, and 16 external organizations, passed.
Model Rule 8.4(g) is best summarized by quoting the Report to the House of Delegates that accompanied Revised Resolution 109:
Proposed Rule 8.4(g) makes it professional misconduct for a lawyer to harass or discriminate while engaged in “conduct related to the practice of law” when the lawyer knew or reasonably should have known the conduct was harassment or discrimination. The proposed rule is constitutionally limited; it does not seek to regulate harassment or discrimination by a lawyer that occurs outside the scope of the lawyer’s practice of law, nor does it limit a lawyer’s representational role in our legal system. It does not limit the scope of the legal advice a lawyer may render to clients, which is addressed in Model Rule 1.2. It permits legitimate advocacy. It does not change the circumstances under which a lawyer may accept, decline or withdraw from a representation. To the contrary, the proposal makes clear that Model Rule 1.16 addresses such conduct. The proposal also does not limit a lawyer’s ability to charge and collect a reasonable fee for legal services, which remains governed by Rule 1.5.
Other than states that have adopted revised versions of Rule 8.4(g), those that have found flaws in Rule 8.4(g) have not offered constructive interpretations or remedies to further the intent and purpose. Nevertheless, there have been some constructive commentaries that are worth discussing.
SCEPR issued Formal Opinion 493 (2020) in an effort to answer some of the questions. Though attacked, it does provide interpretation of the rule. The opinion states that “[w]hether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.” Further, “[t]he Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation.”
The ABA Model Rules of Professional Conduct provide professional boundaries consisting of requirements and limitations on what is done by lawyers. When not voluntarily complied with by legal professionals, the Rules are primarily enforced by bar counsel, not by courts.
In their 2022 article taking issue with the need for Rule 8.4(g), Professors Bruce A. Green and Rebecca Roiphe argue that this Rule risks chilling speech, and they state that while “it is appropriate for disciplinary rules to address harmful conduct, the better response to most hateful speech is more speech.” But Rule 8.4(g) is not akin to the civility and professionalism codes that were and remain popular in some jurisdictions, as the authors assert. And the case cited to support their critique of Rule 8.4(g), United States v. Wunsch, predates the Rule and, though it discusses conduct that could violate the Rule, analyzes that conduct under different rules and standards.
The Rule ensures that “legitimate advice or advocacy consistent with these Rules” is permitted. Conduct that harasses or discriminates and that is not legitimate advice or advocacy is conduct that should be policed by bar counsel. As the Supreme Court said in Gentile v. State Bar of Nevada, “the State’s interest in the regulation of a specialized profession against a lawyer’s First Amendment interest in the kind of speech that was at issue” requires a balance.
A significant number of the attacks on Model Rule 8.4(g) have been from the political right and seem to display bigotry and misogyny cloaked in legal analysis. As Nobel Prize–winning economist Paul Krugman recently noted, “wokeness,” which Model Rule 8.4(g) has been labeled, “normally means talking about racial and social justice. On the right—which is increasingly defined by attempts to limit the rights of Americans who aren’t straight white Christians—it has become a term of abuse.”
Additionally, one can speculate that the majority of the current U.S. Supreme Court might easily accept the arguments of anti–Rule 8.4(g) religious organizations alleging interference with religious liberty.
As Justice Sonia Sotomayor stated in her dissent in Carson ex rel. O. C. v. Makin, the current Supreme Court “continues to dismantle the wall of separation between church and state that the Framers fought to build.” Instead, that wall has itself become a constitutional violation.
It is what Pulitzer Prize–winning New York Times legal columnist and Yale Law School Lecturer in Law Linda Greenhouse called “a call to arms on behalf of religion.” If your violation of Rule 8.4(g) interferes with your religion, Model Rule 8.4(g) will be construed to violate the First Amendment. So far, that specific contention has been obfuscated under the guise of “censorship” and “speech codes” limiting constitutional freedoms according to the arguments of religious organizations themselves seeking to limit constitutional freedoms. In the end, I suspect that there is no language that would satisfy the opponents of Rule 8.4(g). Given the polarization of our country, the “right” to engage in harassment and discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law, if it is not prohibited by law, will be considered an inviolable First Amendment–protected “right.”
At the same time, scholarly articles have hypothesized many situations in which Rule 8.4(g) is contorted into violations of the First Amendment based on actions not involving lawyers’ conduct related to the practice of law. Many such examples do represent intrusion into First Amendment rights of ordinary civilians who are not officers of the court.
But considering actual lawyer discipline cases that have occurred, primarily before adoption of Model Rule 8.4(g), one finds conduct that provides concrete support for the rule. Many actual examples are cited in the ABA Formal Opinion 493.
Consider the California case where a male lawyer told his two female lawyer opponents, “See you next Tuesday” at the end of a hearing. The judge was subsequently informed that the phrase was a secret code for the derogatory C-word directed at women, and the lawyer was reported to the State Bar of California. Should this be protected First Amendment speech?
Again in California, the male managing partner of a law firm took the other members of the firm to a strip club as part of the annual Christmas party. The female members of the firm felt obliged to stay, but they were uncomfortable, embarrassed, and harassed by the interaction of the managing partner with the strippers and by his requirement that some employees submit to lap dances and engage with strippers, including distributing dollar bills for “tipping.” While the male managing partner claimed that it was a voluntary event, despite paying for the event with the corporate credit card, the question could be asked: How are employees to make that distinction when the outing is organized by the person who signs the checks? Should this be considered unrelated to the practice of law?
Consider the lawyer disciplinary matter from the Indiana Supreme Court In re McCarty. There the respondent was suspended for violating Indiana’s Rule 8.4(g). The respondent was an officer of a title company who gave legal advice and represented the company in legal disputes. Responding to an email from a seller’s secretary, the respondent used the phrase, “I am neither you [sic] or his n[*****].” The court found that the N-word is a derogatory racist insult, that the respondent was acting as an attorney, and that the term was not connected to legitimate advocacy.
Connecticut’s version of Rule 8.4(g), Rule 8.4(7), was challenged in Cerame v. Bower. The district court concluded that the plaintiffs lacked standing to bring their case. The court noted that a pre-enforcement challenge requires a showing that “each plaintiff has alleged facts sufficient to show that he is ‘chilled from exercising [his] right to free expression or forgoes expression in order to avoid enforcement consequences.’ This requires showing a real and imminent fear of such chilling, as opposed to an abstract, subjective fear that his rights are chilled” [citations omitted].
Comparing the actual cases discussed herein with the many Chicken Little critics, one cannot deny the acorn of wisdom contained in the opinion of the District Court of Connecticut.
This article began by asking the question: What is it that a lawyer would want to say or do, related to the practice of law, that is prohibited by Model Rule 8.4(g)?
In the complaint challenging the Connecticut version of Rule 8.4(g), the plaintiffs allege that they “will be reluctant to . . . [t]ell[] jokes to other attorneys that the speaker does not intend to be taken seriously but that some members of a protected group deem offensive. . . .”
Perhaps this argument is more succinctly summarized in an editorial cartoon by Tom Toles in the Washington Post, in which a white, male character is in conversation with a female character:
Male: “I’m so sick of ‘political correctness.’”
Female: “Okay. Try it without the ‘political correctness’ then.”
Male: “I’m so sick of not being able to insult and belittle women and minorities.”
Female: “Feel better now?”
