On August 30, the Arizona Supreme Court denied a petition from the National Lawyers Guild, Central Arizona Chapter, urging it to adopt ABA Model Rule 8.4(g). During the May public comment period, Christian Legal Society filed a comment letter opposing the proposed rule, as did Professor Josh Blackman and Professor Eugene Volokh. Many Arizona attorneys also expressed opposition to the proposed rule.
Two Arizona attorneys wrote an outstanding law review article to detail the legislative history behind the ABA’s adoption of Model Rule 8.4(g). In an Arizona bar journal article, state bar counsel had opined that a lawyer would be subject to discipline for telling an offensive joke under ABA Model Rule 8.4(g).
On September 6, the Idaho Supreme Court announced its rejection of a version of ABA Model Rule 8.4(g). The Court noted that it rejected the proposed rule after months of study and after receiving “input from supporters and objectors.” The Court invited the state bar to “revisit” the issue with a narrower proposal that “comport[s] with new United States Supreme Court cases.” Christian Legal Society filed a comment letter opposing the proposed rule.
These back-to-back rejections of ABA Model Rule 8.4(g) reflect the impact of the United States Supreme Court’s recent decisions in NIFLA v. Becerra and Matal v. Tam. As explained in an earlier Federalist Society blogpost, under NIFLA’s analysis, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech. Under Matal’s analysis, ABA Model Rule 8.4(g) is an unconstitutional viewpoint-based restriction on lawyers’ speech.
Arizona and Idaho are welcome additions to a growing list of states that have abandoned efforts to impose ABA Model Rule 8.4(g) on attorneys.