The Alaska Bar Association recently announced that it is taking comments on Proposed Rule 8.4(f) through August 15, 2019. Proposed Rule 8.4(f) would effectively impose the highly problematic ABA Model Rule 8.4(g) on members of the Alaska Bar. Comments may be sent by email to firstname.lastname@example.org, or by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, Alaska 99501, or by calling Bar Counsel At (907) 272-7469.
ABA Model Rule 8.4(g) is a deeply flawed rule adopted by the American Bar Association in August 2016. Professor Eugene Volokh, a nationally recognized First Amendment expert, explains why Model Rule 8.4(g) is a speech code for lawyers in this helpful two-minute video. Professor Josh Blackman recently presented an excellent Federalist Society teleforum on ABA Model Rule 8.4(g).
The Christian Legal Society has prepared a short backgrounder on Proposed Rule 8.4(f) and a sample comment letter. The Christian Legal Society also has submitted a detailed comment letter that explains the serious problems that Proposed Rule 8.4(f) would pose for members of the Alaska Bar.
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. After examining ABA Model Rule 8.4(g) closely, many states have chosen the prudent course: wait to see whether other states adopt ABA Model Rule 8.4(g) and then observe its real-life consequences for attorneys in those states.
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.
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.
Proposed Rule 8.4(f) would regulate Alaska Bar members’ conduct in expansive new ways. Proposed Rule 8.4(f) would make 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” while “interacting with . . . others while engaged in the practice of law” or “participating in . . . business or social activities in connection with the practice of law.”
Proposed Rule 8.4(f) would effectively impose ABA Model Rule 8.4(g)) on Alaska Bar members and regulate nearly everything a lawyer says or does. Regulated conduct may include:
- speaking at public events or presenting CLE courses;
- participating in panel discussions on controversial legal issues;
- publishing law review articles, blogposts, tweets, and op-eds;
- giving media interviews;
- teaching law school classes as faculty, adjunct faculty member, or guest lecturer;
- sitting on the boards of religious institutions, charities
- sitting on the boards of fraternities or sororities;
- belonging to organizations with leadership requirements based on shared belief;
- volunteering at legal aid clinics;
- performing work for political or social action organizations, including political parties and campaigns;
- performing pro bono work for one’s congregation, religious college, or religious K-12 school; or
- lobbying or testifying before legislative committees.
Because Proposed Rule 8.4(f) threatens to chill lawyers’ freedom to express their viewpoints on political, social, religious, and cultural issues, the Alaska Bar Association would be wise to reject the proposed rule. At a minimum, the Alaska Bar Association should 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 – if and when it is adopted in other states.