The long and contentious debate over ABA Model Rule 8.4(g) comes to Illinois as the Illinois Supreme Court Rule Committee will hold a hearing on November 15, 2023, to consider whether to join the handful of states that have adopted some version of Model Rule 8.4(g).
Model Rule 8.4(g) makes it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” based upon various protected classes. The comments to the model rule go on to define discrimination as “verbal or physical conduct that manifests bias or prejudice towards others.” Read closely, and even not so closely, the Model Rule creates a speech code for lawyers: it is plainly not viewpoint neutral, and it sweeps in conduct well beyond the typical regulation of lawyer speech related to the administration of justice by defining the practice of law to mean “participating in bar association, business or social activities in connection with the practice of law.” In addition—reinforcing the viewpoint of the drafters of the Model Rule and the kind of speech that is favored under the Rule—it contains a carveout for “conduct undertaken to promote diversity and inclusion.” In the wake of Students for Fair Admissions v. President and Fellows of Harvard College, the constitutionality of this provision has been called into question.
The proposal from the Illinois State Bar Association (Illinois does not have a unified bar) hews closely to the Model Rule, although it has a toothless carveout for certain classes of conduct and some speech protected by the state and federal constitutions. The current version of the Illinois Rules of Professional Conduct 8.4(j)—which would be repealed and replaced with the proposal from the ISBA—is a far better rule for both practical and constitutional purposes. The current rule it makes it professional misconduct to violate a federal, state, or local statute or ordinance related to discrimination, and it requires a final adjudication on the merits to be reached and all appeals exhausted before determining there has been misconduct.
The practical impact of adopting the proposal would be to convert the Illinois Attorney Registration and Disciplinary Commission, the Illinois Supreme Court agency charged with regulation and discipline of Illinois lawyers, into an employment agency for which it is neither staffed nor funded. Moreover, while some have made broad claims of rampant harassment and discrimination, no empirical evidence of such conduct has surfaced. In an apparent attempt to bolster the claims that underlie this proposal, the Illinois Supreme Court Commission on Professionalism circulated a survey to Illinois lawyers on September 29, 2023 “about the frequency, causes, and impact of bullying in the legal profession.” The survey turned up conduct ranging from eyerolling and staring to pushing and shoving. There are plenty of viewpoint-neutral remedies currently available to address improper conduct, including the present Rules of Professional Conduct as well as federal, state, and local statutes related to employment harassment and even common law remedies. And that is the strength of the unamended version of Illinois Rule 8.4(j): it leaves these kinds of matters in the courts and administrative agencies where they belong and leaves the ARDC to regulate unethical conduct peculiar to lawyers such as trust account maintenance, conflicts of interest, and client communication.
The text of the Model Rule and ISBA’s proposed amendment clearly target speech and not improper harassment and discrimination; the latter are already regulated by federal, state, and local laws. Recognizing the constitutional infirmities of the Model Rule as written, the ISBA included a constitutional carveout (buried in the comments) saying the rule only applies to conduct and certain classes of speech related to public advocacy. But by its plain language, the carveout only applies to the comment itself, not the rule. New York’s version of the rule generally, and the carveout specifically, is far more robust in protecting speech under the state or federal constitution; if there is going to be such a rule, that is the model that should be followed.
Lawyers do not give up their First Amendment rights simply because they become lawyers. The current rules that limit lawyer speech, e.g., Model Rule 1.6, and even compel some lawyer speech, e.g., Model Rule 3.3, are related to the administration of justice and the direct representation of a client, neither of which are implicated by much of the speech that this proposal seeks to regulate.
One does not need to look very far to find examples of individuals and groups who have perceived “manifest bias or prejudice” in statements by lawyers arguing for or against certain public policy or legal positions. It is this kind of speech that is likely to be chilled or punished by the proposal if adopted.
Comments are due by November 8, 2023.
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