The Pennsylvania Disciplinary Board is holding a public comment period through September 30, 2019, on whether to add Proposed Rule 8.4(g) to the Pennsylvania Rules of Professional Conduct. Proposed Rule 8.4(g) is related to ABA Model Rule 8.4(g), the deeply flawed and highly criticized rule adopted by the American Bar Association in August 2016.

This is the third comment period in three years that the Pennsylvania Disciplinary Board has held on a proposed rule similar to ABA Model Rule 8.4(g). The first proposed rule, announced in December 2016, was rejected by the Board, in part, because it received little support. The second proposed rule, announced in May 2018, was so broad that a lawyer telling a routine lawyer joke could be subject to discipline for professional misconduct.  

As Professor Eugene Volokh, a nationally recognized First Amendment expert, 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 two informative Federalist Society teleforums on ABA Model Rule 8.4(g).       

The Christian Legal Society has prepared a short backgrounder on the proposed rule, as well as a sample comment letter. Interested persons may submit written comments to the Pennsylvania Disciplinary Board by email to Dboard.comment@pacourts.us, by fax (717-231-3381), or by mail to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P.O. Box 62625, Harrisburg, PA 17106-2625. 

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 after the Alaska Attorney General submitted a comment letter outlining its serious constitutional flaws and the Rules Committee requested a remand given the “unprecedented” quantity of comments received.

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.

Because Proposed Rule 8.4(g) threatens to chill Pennsylvania lawyers’ freedom to express their viewpoints on political, social, religious, and cultural issues, the Pennsylvania Disciplinary Board would be wise to 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.

It would be the supreme irony if Pennsylvania – the home of Independence Hall where brave lawyers gathered to debate disfavored political views at the risk of their “lives, fortunes, and sacred honor” -- were to adopt a bar rule that risked chilling lawyers’ speech. The Disciplinary Board should instead follow Justice Kennedy’s admonition in his NIFLA concurrence to “preserve and teach the necessity of freedom of speech for the generations to come” by again rejecting Proposed Rule 8.4(g).