Shelly McGough
Associate Editor
Loyola University Chicago School of Law, JD 2019

Arizona and Idaho are the most recent in a long line of states declining to adopt the American Bar Association’s (ABA) new Model Rule 8.4(g), which is being called the “anti-discrimination” rule.  This rule was adopted by the ABA to specifically address harassment and discrimination based on race, religion, sex, disability, and LGBTQ status in all conduct related to the practice of law.  However, because of the broad construction and application of the rule, many states and attorneys have concerns that compliance with this anti-discrimination rule will infringe on their First Amendment rights of freedom of speech and religion.

The American Bar Association

Founded in 1878, the ABA is committed to supporting the legal profession with practical resources for legal professionals, while improving the administration of justice, accrediting law schools, establishing model ethics codes, and more.  Membership is voluntary, yet many jurisdictions turn to the ABA for guidance on many issues, including professional ethics.

The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983.  They serve as models for the ethics rules of most jurisdictions.  Every state, except for California, has adopted rules that are formatted after the ABA Rules of Professional Conduct.  However, since each state drafts its own rules of professional conduct for lawyers, each state is free to adopt the ABA Model Rules with or without amendments, or not to adopt any rule proposed by the ABA.

The Anti-Discrimination Rule

The ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) adopted a new Model Rule, Rule 8.4(g), on August 8, 2016. The rule is known as the anti-discrimination rule, as it forbids a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or 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.”

This new rule replaces the old paragraph [3] of the Comment to Rule 8.4, which discouraged lawyers from, in the course of representing a client, knowingly manifesting by word or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.

Justifications for the New Rule

The new ABA rule was designed to prohibit discriminatory harassment not only in the practice of law, but also at bar association meetings and other social functions.  Comment [4] to the new rule defines “conduct related to the practice of law” as representing clients and courtroom activity, as well as participating in bar association, business or social activities in connection with the practice of law.  The new rule and comment are in direct response to an ABA report that noted evidence of sexual harassment at activities, such as law firm dinners and other nominally social events, at which lawyers are present solely because of their association with their law firm or in connection with their practice of law.

Many at the ABA felt that the previous Comment [3] was too limited, as it only addressed bias or prejudice when representing a client and only when prejudicial to the administration of justice.  More concerning is the fact that the old Comment [3] was merely guidance—it was in no way enforceable in disciplinary proceedings.  By adding this new Model Rule, the ABA makes anti-discriminatory practices enforceable in all States that adopt the rule.

Constitutional Concerns

Many attorneys are concerned that the new rule will ultimately punish them for expressing personal opinions in social settings, thus infringing on their First Amendment rights—both free exercise of religion and speech.  They fear that offhand comments or political opinions based on religious beliefs would demonstrate “bias” such as described in Comment [4], thus incurring disciplinary action.  Moreover, the person violating the rule need not even be speaking to the object of the alleged harassment or discrimination; the statement merely needs to be directed at “others.”  Other concerns hinge on the broad nature and reach of the rule.  For example, some fear that firms may face ethical violations if they lack diversity.

The States’ Reactions

The states have been slow to respond to Rule 8.4(g).  To date, Vermont is the only state to have adopted the rule. Several states have either formally or informally declined to adopt or consider adoption of the rule, based largely on freedom of speech and freedom of religion concerns.

At the same time, more than 25 jurisdictions already had provisions in their Rules of Professional Conduct making it an ethical violation for a lawyer to discriminate or harass another.  For example, in 2010, Illinois adopted a similar rule which requires a finding of a “violation of a federal, state, or local statute or ordinance that prohibits discrimination.”  The Illinois rule, unlike ABA Rule 8.4(g), does not apply to social events, and therefore has not faced the criticism currently challenging 8.4(g).

It remains to be seen if this ABA Rule of Professional Conduct will withstand constitutional scrutiny. This may be the reason 8.4(g) is being so poorly received by the states.  While anti-discrimination rules are a noble pursuit, such rules cannot force compliance on attorneys if that compliance infringes on First Amendment rights.  If the ABA wants more states to adopt such a rule, it may want to consider an amendment that takes more care in balancing anti-discriminatory intent with freedom of speech concerns.