Professionalism for the Ethical Advocate: Hypotheses and Analysis (compressed version 8.4) by Thomas Spahn The ABA`s decision to control what lawyers say: Support for “diversity, but not diversity of thought” by Ronald D. Rotunda A language code for lawyers that prohibits views that express “prejudice,” including in social activities related to Eugene Volokh`s law Letter from the Texas Attorney General Regarding the Unconstitutionality of Model Rule ABA 8.4 (g) Letter from the Attorney General of Louisiana Against the Adoption of the ABA Model Rule 8.4 (g) Letter from the Attorney General of South Carolina Against the Adoption of the Rule ABA Model 8.4 (g) Letter from the Attorney General of Tennessee against the adoption of ABA Model Rule 8.4 (g) Letter from CLS to the ABA opposing the adoption of Model Rule 8.4(g), March 16, 2016 A commentary on the ABA Rule indicates that conduct related to the practice of law includes participation in the Bar Association, commercial or social activities related to the exercise of the right. Michigan (MI): Broader anti-discrimination rule, wording similar to 8.4(g). See state rule in section 6.5. It would consider an anti-discrimination rule similar to paragraph 8.4(g). After careful consideration of the observations received from both parties on this issue, the Court unanimously decided to reject the proposed amendment to Article 8.4. The Court is not persuaded that proposed Rule 8.4(g) is necessary or that it addresses an identified problem. Aba Model Rule 8.4(g) applies to “conduct related to the exercise of the law”. Both the second and third proposals use slightly narrower language: “words or conduct” “in legal practice”. However, the third comment greatly expands this area: “Conduct in legal practice includes participation in activities required for a lawyer to practice law, including but not limited to legal education seminars, banking conferences, and bar association activities where legal education credits are located.” At first glance, for example, this rule could prohibit certain types of statements in a key debate. In addition, the language “including, but not limited to”, can open the rule to an infinite number of forums. The third proposal was even broader than the second.
Maine`s rule of ethics does not prohibit discrimination based on marital and socioeconomic status. Model Rule 8.4(g) has drawn widespread criticism due to First Amendment concerns, and most states have refused to adopt their language.i When California changed its business rules in 2018, California`s new Rules of Business Conduct (“CRPC”), Rule 8.4 adopted the wording of Model Rule 8.4(a) – (f), while Model Rule 8.4(g) was omitted and comments were added, that the “Rule does not prohibit the activities of a particular attorney, which are protected by the First Amendment of the United States Constitution or by Article I, Section 2 of the California Constitution.” (CRPC, Rule 8.4, Commentary .) ABA Model Rule 8.4(g) prohibits certain types of harassment in relation to several protected categories. The third proposal goes even further. It regulates “including, but not limited to, prejudice, harassment or discrimination based on race, sex, gender identity or expression, religion, national origin, ethnic origin, disability, age, sexual orientation, marital status or socio-economic status.” Again, the wording “including, but not limited to, significantly expands the scope of the prohibited speech. What is included in the price? A lawyer will have to guess. In addition, the Director of the Center, Kim Colby, drafted a memorandum on the pitfalls of ABA Model Rule 8.4(g). Some States have already publicly proposed the adoption of ABA Model Rule 8.4(g). CLS submitted a comment letter against the adoption of ABA Model Rule 8.4(g) in each State where CLS was aware of an open comment period.
Read CLS Executive Director David Nammo`s comment letters (listed in the order of last filing): Following the ABA`s adoption of Model Rule 8.4(g), the U.S. Supreme Court issued two decisions promoting allegations of unconstitutionality: Matal v. Tamii and National Institute of Family and Life Advocates v. Becerra.iii In July 2018, I submitted a letter, in which I praised some of the revisions, but criticized others. The May 2018 proposal was not adopted. Additional Resources CLS has developed resources to help lawyers explain issues related to Model Rule 8.4(g). We recommend the following resources if you continue to address this issue: ABA Journal Article, October 2017 The Christian Lawyer Article The Evolution of the New ABA Model Rule 8.4(g) Comparison of State Black-Letter Rules to Model Rule 8.4(g Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession by Michael McGinniss The Proposed Rule 8.4(g) would have caused professional misconduct for a Southern lawyer Dakota made it on: CLS has attorney members in almost every state and in the District of Columbia. In several states, the lawyers involved have already succeeded in educating their colleagues on why model rule abA 8.4(g) should not be adopted in their state.
On the right are the states where CLS knows that the ABA Model Rule 8.4(g) has been issued or taken into consideration. Illinois (IL): Stronger anti-discrimination language. See Country Rule. It was reported that the Bar Association voted against the adoption of paragraph 8.4(g). In August 2016, the ABA House of Representatives passed the model rule prohibiting discrimination. Critics have argued that the rule cools speech and interferes with religious freedom. CLS`s national efforts to combat ABA Model Rule 8.4(g) Shortly after the ABA adopted Model Rule 8.4(g), the ABA sent a letter to each state Supreme Court requesting it to also adopt ABA Model Rule 8.4(g). The model rule is therefore on the radar of all the supreme courts of the state and is “considered” in this sense.
In August 2019, the Discipline Committee proposed a third revision based on Rule 8.4(g): For a more in-depth discussion of ABA Model Rule 8.4(g), see the Federalist Society`s debate between Professor Volokh and Rob Weiner. The work must be done in all 50 states, whether a new rule has been proposed publicly or not. Some state bars or state supreme courts want to push the ABA 8.4(g) model rule, and CLS wants to help individuals in the states educate their state bars and state courts about the immense problems of the ABA 8.4 model rule (g). This rule can be used to censor protected speech, and worse, it will deter lawyers who attempt to engage in protected speech. However, the proposed new rule will not enter into force until it has been adopted in a State. In Greenberg`s wake, similar challenges are likely to be expected in the seven states that have adopted a version of Model Rule 8.4(g)vii, and it remains to be seen whether the ABA will reconsider its position in defense of the constitutionality of Model Rule 8.4(g). The 9. In March, the Chief Justice of the Supreme Court of South Dakota announced in a thoughtful letter that the Court had rejected a proposed amendment that represents an alternative version of ABA Model Rule 8.4(g). Specifically, the letter to the South Dakota State Bar stated: Greenberg filed a pre-established challenge to the constitutionality of the amendments to Rule 8.4 of the Pennsylvania Rules of Professional Conduct, adding the language of Model Rule 8.4(g) and related commentaries (“Amendments”). The plaintiff, attorney Zachary Greenberg, argued that the amendments constitute substantial discrimination based on a view that violates the First Amendment.
The court agreed and issued an injunction blocking the implementation of the amendments. The Chief Justice also announced that a commission would be appointed “to investigate and make recommendations to the court on how best to prevent and remedy sexual harassment in the South Dakota legal profession.” The commission will be composed of “judges, judges, lawyers and other members of the judicial system”. She is expected to be appointed by 15 April and submit her report by the end of 2020 […].