The Iowa Supreme Court is holding a public comment period until 4:30 on September 30, 2019, on a number of proposed rule changes, including Proposed Rule 32:8.4(g), which would essentially add ABA Model Rule 8.4(g) to the Iowa Rules of Professional Conduct. ABA Model Rule 8.4(g) is the deeply-flawed and highly-criticized rule adopted by the American Bar Association in August 2016.
As Professor Eugene Volokh, a nationally recognized First Amendment expert, has explained in a two-minute Federalist Society video, ABA Model Rule 8.4(g) is a speech code for lawyers. Professor Josh Blackman has presented an informative Federalist Society teleforum on ABA Model Rule 8.4(g).
The Christian Legal Society has prepared a short backgrounder on Proposed Rule 32:8.4(g), as well as a sample comment letter. The Christian Legal Society recently submitted its comment letter detailing some of the potential consequences if Proposed Rule 32:8.4(g) were adopted.
Proposed Rule 32:8.4(g) would regulate Iowa Bar members in expansive and novel ways by making 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.” An accompanying comment explains that this includes “interacting with . . . others while engaged in the practice of law” or “participating in . . . bar association, business, or social activities in connection with the practice of law.
Proposed Rule 32:8.4(g) would unnecessarily alter Iowa’s current Rule 32:8.4(g), which already makes it professional misconduct to engage in sexual harassment and unlawful discrimination. Furthermore, Iowa’s current Comment  that accompanies Rule 32:8.4(d) already deems bias and prejudice in the course of representing a client to be professional misconduct when prejudicial to the administration of justice.
Fortunately, ABA Model Rule 8.4(g) operates only in those states in which the highest court chooses to adopt it; and after three years, only the Vermont Supreme Court has adopted ABA Model Rule 8.4(g) in full. As the ABA itself acknowledges, to date, at least nine states have rejected the overly broad rule, including: Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, and Tennessee. For all practical purposes, the rule has also been rejected in Texas and North Dakota. The Alaska Bar Association recently decided not to recommend its adoption at this time but to remand it to its rules committee for further study, pursuant to the committee’s own request.
Some states have backed away from ABA Model Rule 8.4(g) in light of two recent United States Supreme Court decisions in National Institute of Family and Life Advocates (NIFLA) v. Becerra and Matal v. Tam. In NIFLA, the Supreme Court held that government restrictions on professionals’ speech -- including lawyers’ professional speech -- are generally subject to strict scrutiny because they are content-based speech restrictions and, therefore, presumptively unconstitutional. In Matal, the Supreme Court unanimously struck down a longstanding federal statute because it allowed government officials to penalize “disparaging” speech and, therefore, was viewpoint discriminatory.
Helpful recent resources on ABA Model Rule 8.4(g) include a superb letter, dated August 9, 2019, from the Alaska Attorney General to the Alaska Bar Association, as well as Professor Michael S. McGinniss’ article, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173 (2019).
Proposed Rule 32:8.4(g) threatens to chill Iowa lawyers’ freedom to express their viewpoints on political, social, religious, and cultural issues. One hopes the Iowa Supreme Court will reject the proposed rule or, at a minimum, wait to see whether the widespread prediction that ABA Model Rule 8.4(g) will operate as a speech code for attorneys is borne out should other states choose to experiment with it.
Interested organizations, individuals, or agencies may express their comments by email to email@example.com, or by regular mail to the Clerk of the Iowa Supreme Court, 1111 East Court Avenue, Des Moines, Iowa, 50319. The Clerk may choose to post the comments on the Iowa Judicial Branch website. Comments must –
- reference “Chapter 32 Amendments” in the subject line of the email;
- reference the specific rule number and line number, which is Rule 32:8.4(g), page 33, lines 44-46; page 34, lines 1-46; page 35, line 1; and
- be sent as an attachment to the email in Microsoft Word format.