At the South Dakota Bar Annual Meeting on Friday, June 21, in Rapid City, South Dakota Bar members will vote on a Bar Commission proposal that the South Dakota Supreme Court consider adopting a modified version of ABA Model Rule 8.4(g). The business meeting is scheduled to begin at 8:15 a.m. Mountain Time in the Rushmore Room of the Ramkota Hotel, with the vote likely to be held early in the meeting.
The Proposed Rule 8.4(g) would make it professional misconduct for a South Dakota lawyer to:
(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a preemptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.
This Proposed Rule 8.4(g) is narrower than the deeply flawed ABA Model Rule 8.4(g) because the conduct it prohibits must be “prejudicial to the administration of justice,” a requirement not found in ABA Model Rule 8.4(g).
But that is also why the proposed rule should be rejected. South Dakota Professional Rule of Conduct 8.4(d) already makes it professional misconduct to engage in conduct “prejudicial to the administration of justice.” Furthermore, accompanying Rule 8.4(d), South Dakota has long had former ABA Comment  that further explains that:
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
In addition to being redundant, Proposed Rule 8.4(g) would add a black letter rule that raises similar constitutional problems to those that ABA Model Rule 8.4(g) creates. Both target lawyers’ words. Yet in a 2018 opinion, the United States 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. And in a 2017 opinion with obvious ramifications for regulatory attempts to penalize “harassing” speech, the Supreme Court unanimously struck down a longstanding federal statute because it allowed government officials to penalize “disparaging” speech and, therefore, was viewpoint discriminatory.
Equally problematic, several of the terms in Proposed Rule 8.4(g) are vague or undefined. What does “the known use of words” mean? “Engag[ing] in harassing or discriminatory conduct . . . when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others” is subject to discipline. But who are “others”? Does “others” mean other persons involved in court proceedings, or other persons outside of court proceedings? What is “legitimate advocacy”? What is “illegitimate advocacy”? Who decides? And is “legitimate advocacy” limited to the context of “counsel provid[ing] advice”? Most importantly, the terms “harassing” and “discriminatory” are undefined, perhaps because ABA Model Rule 8.4(g)’s attempts at defining those broad terms have drawn heavy criticism.
Will South Dakota attorneys choose to follow Vermont’s lead and experiment with a version of ABA Model Rule 8.4(g)? Or will they choose to follow the lead of decisionmakers in Montana, North Dakota, Idaho, Arizona, Nevada, Minnesota, Texas, Tennessee, Louisiana, South Carolina, and Illinois, and reject a problematic version of ABA Model Rule 8.4(g)?