In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for 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.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
On April 10, 2017, though, the Montana state legislature passed a joint resolution declaring that the new rule violates the First Amendment to the United States Constitution and the Montana Constitution. The resolution passed the Montana House of Representatives by a vote of 58-41, and it passed the Senate by a margin of 32-18.
In pertinent part, the resolution points to “virtually unanimous” public opposition to the new rule reflected in comments “pointedly observing that the new rule seeks to destroy the bedrock foundations and traditions of American thought, speech, and action ....” It notes that the ABA “is not legally authorized to give legal advice, but rather is engaged in political advocacy ..., even though it has no legal capacity to speak on behalf of any attorney nor as the mouthpiece of attorneys throughout the United States....” The resolution also states that the new rule threatens to chill attorney speech and to force an attorney to “answer for vague complaints, even if the attorney has not participated in historically unprofessional practices, thereby threatening such attorney’s reputation, time, resources, and license to practice law....”