Ethics CLE Teleforum: Model Rule 8.4(g) Update, What Attorneys Should Be Aware Of In 2019/2020

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Professional Responsibility & Legal Education Practice Group, was recorded on Wednesday, September 25, 2019, during a live teleforum conference call held exclusively for Federalist Society members.

 

      I would also like to note that this call was used for CLE credit. However, post the event, you cannot claim any.

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is our annual ethics CLE teleforum, titled "Model Rule 8.4(g) Update: What Attorneys Should Be Aware of in 2019/2020." My name is Micah Wallen. I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Professor Josh Blackman, who is a Professor of Law at South Texas College of Law in Houston. All right, Josh, so without any further ado, the floor is yours.

 

Prof. Josh Blackman:  Thank you so much, Micah. It's a pleasure to be talking to everyone. My name is Josh Blackman. I'm a law professor at the South Texas College of Law in Houston. I'm also a member of The Federalist Society's Professional Responsibility Practice Group. I've done this talk once before. It went well. Hopefully, this one goes well also.

 

      Our topic today is ABA Model Rule 8.4(g). In August of 2016, the American Bar Association approved Model Rule 8.4(g). Under this amendment, it is misconduct for an attorney 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. Comment 4 to the rule adds that, quote, "Conduct related to the practice of law includes representing clients, interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law. Operating or managing a law firm or law practice and participating in bar association business or social activities in connection with the connection of law is also included." This is a very broad rule.

 

      Now, the model rule is just that, a model that does not apply in any jurisdiction. Since 2016, states have considered whether to adopt Rule 8.4(g). In 2017, I wrote an article in the Georgetown Journal of Legal Ethics. I urged the states to pause before adopting 8.4(g) in light of certain First Amendment concerns. Over the past three years, I have filed comments in a number of states urging the court to hesitate. I also filed some letters with Professor Eugene Volokh, who is at UCLA. And we largely agree that this rule has serious constitutional concerns.

 

      Let me now give you an overview of where we stand in each of the states. And I thank the Christian Legal Society and Kim Colby, who keeps a very accurate list of these matters. So far, six states have formally rejected the rule: Arizona, Idaho, Montana, New Hampshire, South Carolina, and Tennessee. Three states, petitions were put out for comment, but they were withdrawn after the comment period. That's Nevada, Louisiana, and Alaska. There are three states in which there was a comment period, but no decision has yet been issued: New Mexico, Utah, and D.C.—D.C. is not a state, but I'll pretend it is for now.

 

      There are two states that have open comment periods now: Iowa and Pennsylvania. Both those comment periods close soon, in five days on September 30th. If you want information on how to submit comments in those states, please check with the Christian Legal Society's website. They have all the addresses you need.

 

      My home state of Texas is, of course, an outlier. Our attorney general wrote an opinion saying that this rule is unconstitutional so that there's been no adoption of the rule in Texas.

 

      Only one state, by my count, Vermont, adopted 8.4(g) in its entirety; that is, without any modifications. So that's the only state that's actually adopted all of it. There are two states, also in New England, that have adopted a more narrow version of 8.4(g); that is, they modified. So by my count, that's New Hampshire and Maine. And at the end of the presentation, I'll walk through in detail the status in each state. But what we've seen so far is the states have been fairly skeptical. They've been very cautious about moving forward with this rule. And my goal is to explain why that's been the case.

 

      My presentation today has four parts for you. First, I will focus on how Rule 8.4(g) extends a disciplinary committee's jurisdiction to conduct related to the practice of law. For speech, that can be deemed harassment. This category includes a lot of things; for example, a lecture at a CLE event or a dinnertime conversation at a bar function. These communications would now be subject to discipline. If you know that someone may find your comments derogatory, this threat of sanction will chill speech on matters of public concern. Neither the rule nor its comments are aware of this novel intrusion into the private spheres of an attorney's professional life.

 

      The second part of my talk will compare Rule 8.4(g) with other ABA rules, as well as rules adopted in states. I find that Rule 8.4(g) is unprecedented because it extends the disciplinary committee's jurisdiction to conduct merely related to the practice of law rather than to the practice of law itself. These categories of speech have only the most tenuous connection to representing clients, the lawyer's fitness, or the administration of justice.

 

      Third, I will discuss Rule 8.4(g)'s chilling effects. Though courts have generally upheld the regulation of attorney speech in the context of the practice of law, we're not dealing here with the practice of law. We're dealing with the conduct related to the practice of law. And as the expression becomes more attenuated, the bar association's traditional purposes, the states' interest becomes far less compelling. In this sense, past precedents of holding disciplinary actions for attorney speech are largely unhelpful. Though 8.4(g) sweeps in a vast amount of speech on matters of public concern and imposes an unlawful form of viewpoint discrimination, at bottom, the defenders of the model rule can only urge us to trust the disciplinary committees. I don't. The First Amendment demands more.

 

      The fourth part of my talk will provide a state-by-state overview of where we stand on rule 8.4(g) as of today. It may change tomorrow, but I'll be as current as I can.

 

      Let's start. Rule 8.4(g)'s drafter's were well intentioned. There was a hearing held in 2016, and many witnesses expressed concerns about sexual harassment that occurs during the practice of law. And as I'm sure we're all aware, sexual harassment can occur at after-hours social functions. One lawyer said that no one wants to engage in the private aspect of life, but she said that there was so much sexual harassment and bullying against women that occurs after hours; for example, on the way home from an event or in a limo ride traveling from a long day of litigation. This attorney said that these are not just social events, they're professional events, and having a more narrow sphere of jurisdiction would allow these acts to go unpunished.

 

      Another attorney who is a past president of the ABA gave an anecdote of sexual harassment that occurred at a Christmas party, another instance where a male partner asked a female associate to dinner after a deposition was over, followed by an invitation to come to my room. She asked rhetorically, "Is this in relation to the practice of law?" The committee then decided they would need to move beyond the practice of law and include also conduct related to the practice of law. So again, I think that these individuals were well intentioned. They identified conduct which I don't think anyone approves of, but the way they went about prohibiting it, I think, went a bit too far.

 

      The second part of the rule I'd like to discuss is the word harassment. Harassment is a word that is used a lot in common parlance, but there's not a very good definition of what harassment is. Let me stress, the rule doesn't only prohibit sexual harassment, which is premised on a fairly well-developed body of case law. It gives its own definition of harassment. "Harassment includes"—I'm going to read the quote—"derogatory or demeaning verbal conduct." What does demeaning mean? Black's dictionary, Bryan Garner tells us, means "exhibiting less respect for a person or group of people than they deserve or causing them to feel embarrassed, ashamed, or scorned." What's derogatory? Oxford defines it as "showing a critical or disrespectful attitude." Random House says derogatory means "tending to lessen in merit or reputation a person or thing." These are very broad definitions that embrace a wide range of human conduct.

 

      In the abstract, speech that satisfies any of these definitions is entirely protected by the First Amendment. This is not libel. This is not fighting words. This is not incitement to violence. Justice Alito wrote an opinion on the Third Circuit some time ago. He wrote that there is no categorical harassment exception to the First Amendment, and I think Justice Alito is right. The courts have generally permitted the imposition of damages for verbal, that is, non-physical sexual harassment in the employment context in certain instances. For example, if speech in the employment context creates a hostile work environment or an offensive work environment, and it's severe or pervasive, the state is allowed to punish it.

 

      I have some doubts whether those standards are consistent with the First Amendment, but I'll take those as a given for the purposes of this call. But Comment 3 is not governed by federal and state law. It said that federal and state discrimination law may guide the application of Paragraph G. In other words, the ABA went beyond what employment laws require. There's no requirement that the speech must be severe or pervasive. A single harassing comment could result in discipline. Moreover, this rule extends beyond the work environment. It incudes bar functions, CLEs, and other social events that are connected to the practice of law. Indeed, lawyers are required to attend classes for CLE to maintain their licensing. All of you are listening to my voice now, not because you want to hear me—well, maybe—but because you need CLE credits to pass your bar. These are requirements of the bar.

 

      Now, I want to give some examples of topics that you may talk about at a bar function or a CLE that could be derogatory or demeaning. These examples are deliberately provocative. Again, I'm being provocative on purpose because I want to demonstrate that there's a wide range of verbal conduct that can get you in trouble. As a law professor who writes a lot of these things, you can get me in trouble too.

 

      So let's go down the list. There are 11 protected classes in this rule. First, I'll talk about race. Let's say that a speaker discusses mismatch theory, the idea that affirmative action harms minorities because it places them in an environment that makes it difficult for them to compete. So let's say a speaker discusses mismatch theory and contends that race-based affirmative action should be banned because it hurts minority students. Is that demeaning on the basis of race? A lot of people might think so.

 

      Let's talk about gender. A speaker says that women should not be eligible for combat duty in the military and should be exempt from selective service. Could that be viewed as demeaning to women? Probably. Religion. Let's say that a speaker states that the owner of a for-profit corporation who requests a religious exemption for a contraceptive mandate is bigoted and misogynistic. Is that demeaning towards religion? Probably.

 

      National origin. Let's say someone supports an immigration doctrine to exclude aliens from certain countries or ethnicity. A professor says that Korematsu v. United States was correctly decided. Disability. Let's say a speaker says that people with mental handicaps should be eligible for the death penalty. Sexual orientation. Let's say a speaker argues that Obergefell v. Hodges was wrong, and the 14th Amendment says nothing about same-sex marriage.

 

      Gender identity. Let's say someone says that Title IX should not be read to prohibit discriminate on the basis of gender identity. This is a case in the Supreme Court this term. If I were to give a lecture on the Title IX case this term with gender identity -- actually, Title VII case this term, I could be brought up on charges of demeaning people based on their gender identity. And so on it goes. This rule, which, again, I think is well intentioned, sweeps in a huge range of legitimate public discourse that could make others feel demeaning on the basis of these classes.

 

      These examples also should signal something. There's a political bias involved. Speech on the right side of the political spectrum would disproportionately give rise to liability. Those favoring affirmative action will not get in trouble; those opposing it would. Those opposing same-sex marriage will get in trouble; those favoring same-sex marriage will not get in trouble. This is basically a code that rewards progressive speech but punishes conservative speech.

 

      Now, you may think, "Wait a minute, Josh. I don't really care about this because I don't give CLE presentations." If you read the rule carefully, this isn't just about the speaker. If you attend a bar dinner, and you have a conversation over dinner or over drinks, your conversation is now governed by this list. Maybe you're an adjunct at a law school. Maybe you teach a class at a law school. The way I read the rule, conduct related to the practice of law incudes teaching. You need a law license to teach, and you need to go to law school to teach. I'm sorry, you need to go to law school to become an attorney. So even if you have an adjunct and you're not tenured, I think you're governed by this rule. Students who are unhappy with your lectures may complain.

 

      It even applies at career day. Let's say you go to a Catholic school and you talk about the role of faith in the practice of law. That could well be seen as conduct related to the practice of law. I don't know. Maybe it's not. But I would have to think twice about engaging in such speech because I know someone who may be unhappy with it could file a bar complaint against me. And that's why this is problematic.

 

      The most striking aspect of the Rule 8.4(g) regime is how little awareness the ABA had for prohibiting protected speech. The rule and the comments do not reference the First Amendment. Can you imagine that? There's no reference to the First Amendment. Now, maybe they were thinking about other matters. Maybe they were worried about other anecdotes about sexual harassment.

 

      But I think that there's reason to believe that they deliberately removed reference to the First Amendment. How do I know this? An earlier draft of Comment 3 referenced it. It said that this rule does not apply to conduct unrelated to the practice of law or conduct protected by the First Amendment. The report at that time said a lawyer retains the private sphere, and political speech is protected by the First Amendment. This provision is a clarification to avoid First Amendment problems.

 

      Guess what? That comment was removed. Even though people favored the inclusion of that rule, those who backed 8.4(g) said it weakens it. It takes away from the rule. It doesn't make the rule stronger. So as a result, the ABA actually stripped the rule of references to free speech and the free exercise of religion. I'll let you draw whatever conclusions you want, but this is, I think, good evidence to show that this was -- there was an awareness that this would intrude on the First Amendment, but it pushed forward anyway.

 

      All right, let me move on to the second part of my talk. The second part of my talk will focus on what were the regimes in effect before 8.4(g). And let me make this point very blunt. The bar has ample power to prohibit misconduct on the practice of law. I am not denying that. There are a lot of bad lawyers who deserve to be punished. I think there are lawyers who aren't punished severely enough. They're getting slaps on the wrist after many years. So there's room to actually punish misconduct. But this rule goes further.

 

      So let's do a summary. We have the Model Rules of Professional Conduct which have been adopted in various forms in all 50 states. And these rules govern the responsibilities, duties, and restrictions on attorneys when they're practicing law or representing clients.

 

      Rules 1.0 through 1.18 define the various attributes of the client/lawyer relationship, including conflicts of interest and duties owed to clients. Rules 2.1 through 2.4 discuss the attorney's role as a counselor. Rules 3.1 through 3.9 describe an attorney's responsibilities as an advocate before tribunals. Rules 4.1 through 4.4 establish how an attorney must transact with people other than clients. Rules 5.1 through 5.7 govern an attorney's responsibilities as part of a law firm or association. Rules 6.1 through 6.5 center around an attorney's commitment to public service, including pro bono work. Rules 7.1 through 7.6 focus on how an attorney can convey information about legal services such as advertising or soliciting clients.

     

      If an attorney violates any of these rules I just mentioned, he or she is in violation of Rule 8.4(a). The remainder of Rule 8.4, however, governs conduct that is increasingly more attenuated in the actual practice of law. Rule 8.4(b) states that it is misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Now, not all criminal acts are misconduct, only those that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. In a sense, white collar crimes are worse than violent crimes. Bank fraud is worse than bank robbery in this regard.

 

      Rule 8.4(c) provides that it is misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Even if an action is not criminal, if it involves dishonesty, fraud, deceit, or misrepresentation, it warrants disciplinary action. Indeed, Rule 8.4(c) swallows up virtually all of the conduct in 8.4(b) and then some. These two provisions articulate a standard that a lawyer's actions, even when unconnected with the practice of law, must at all times promote honesty and trustworthiness so there's no doubt about his or her fitness to practice law.

 

      Rule 8.4(d) states that lawyers cannot engage in conduct that is prejudicial to the administration of justice. This is a fairly nebulous standard that doesn't have a very clear meaning. Next, we have Rule 8.4(e). Rule 8.4(e) prohibits lawyers from stating or implying an ability to influence improperly a government agency or official, and that seems straightforward. Rule 8.4(f) prohibits knowingly assisting a judge or judicial officer in conduct that is a violation of the rules of judicial conduct. These more or less duplicate 8.4(d). Each concern conduct including speech that undermines the neutrality and fairness of our legal system, even if I'm engaged in during the course of representation.

 

      Now, that's 8.4(a) through (f). If I can summarize a bit, these rules prohibit three categories or heads of conduct: first, conduct during the practice of the law or representing a client; second, conduct that reflects on a lawyers fitness to practice law; third, conduct that's prejudicing the administration of justice. 8.4(g) goes further. It covers conduct related to the practice of law. This rule represents an expansion of the disciplinary committee's jurisdiction over the private lives and speech of attorneys.

     

      And this was flagged during the hearings. People objected to regulating conduct that's not related to delivery of legal services. And to be sure, lawyers who engage in dishonesty, fraud, or deceit in their private lives are going to be disciplined. But that's because it affects their fitness to practice law. I don't think that the speech that's at issue here affects fitness to practice law.

 

      Now, the ABA acknowledged that the new rule is indeed broader than the current provisions but said change is necessary. The resolution said ethics rules should make clear that the profession will not tolerate harassment and discrimination in any conduct related to the practice of law. Beyond serving as officers of the court, the ABA said, lawyers are public citizens. That means all of you. You're public citizens with a special responsibility for the administration of justice. This notion of an attorney as a public citizen is derived from Preamble 6 of the Model Rules. But Preamble 6 still treats attorneys as private.

 

      Let me give an anecdote. I recently spoke with a lawyer from Alaska who was considering whether to back 8.4(g). He was very candid, and he told me that he backed 8.4(g) for a reason. He viewed the bar as a club, and he said his job as a member of the bar was to keep—I'm going to use an almost swear word—an a-hole. He said his job was to keep a-holes out of the bar. He didn't want people he disliked who had ideas he disliked and conduct he disliked from going to the bar.

 

      I responded very vigorously that he was really wrong, and he should reconsider his actions. The bar is a cartel. It's a monopoly of the state. They're given a limited jurisdiction to regulate the practice of law and ensure people are fit to practice law. It's not their job to keep out A-holes. It's not their job to keep out people with unpopular ideas. That's not what the bar is for. And the good news is, I think he was one of the dissenting votes, but Alaska more or less tabled the rule. But he was candid in telling us how he believed the role of the bar. I forcefully disagree.

 

      Next, I want to talk about the rules in the various states. Over the past two decades, nearly three dozen jurisdictions have amended their own Rule 8.4 to prohibit discrimination, harassment, and other forms of bias. But with a few exceptions, these rules only govern conduct within the three heads I identified earlier. They regulate bias during the representation of a client during the practice of law. I found this standard in 15 states. Second, some states have a broader standard that regulates bias that implicates a lawyer's fitness to practice law whether or not it occurs in the practice of law. I found two states with this standard. Third, the broadest standard prohibits bias that prejudices the administration of justice. This standard, which would reach conduct entirely outside the client/lawyer relationship, is imposed by seven states.

 

      But even taking these standards as they are, none are as broad as 8.4(g). I'll walk through a couple highlights. There are three exceptions. Indiana regulates misconduct when, quote, "engaged in a professional capacity." Washington State and Wisconsin regulate misconduct as committed in connection with a lawyer's professional activities. These rules don't define professional capacity or professional activities. These rules are broad. They're very broad. But at least they still have a concrete connection, a nexus, if you will, to delivering legal services. They don't purport to reach social activities such as bar sponsored dinners that are merely connected with the practice of law. Model Rule 8.4(g) is unprecedented in its scope, and I think efforts to cite these old state rules cannot be used to support 8.4(g).

 

      Part three. Now I will turn to the third part of my talk. The ABA's report accompanying Rule 8.4(g) gave a very cursory First Amendment analysis. There was no discussion of why they removed comments about the First Amendment. They didn't mention this. I will, and I will explain why I think there are serious free speech problems. As a general matter, constitutional scrutiny often balances means and ends. As the government's interest becomes more compelling, the rule's tailoring needs to be more narrow. I'm sorry, I messed it up. As the government's interest becomes more compelling, the rule's tailoring need not be as narrow. But when the government's interest is less compelling, you need narrow tailoring.

 

      I agree that governing professional conduct is a compelling interest within a bar association's core jurisdiction. I accept that general premise. When the government is restricting actual practice of law, the authority is strong, and the state has an interest to ensure people are competent. I'll accepts that for now.

 

      But when you're dealing not with the practice of law but with conduct related to the practice of law, including speech or social events, the government's interest becomes less compelling because it is outside the traditional regulatory function of bar associations. In other words, when the nexus between the legal practice and the speech at issue is more attenuated, the disciplinary committee's authority to regulate an attorney's expression becomes weaker. As a result, narrow tailoring becomes critical to salvage the sanction's constitutionality. Stated differently, the same capacious standard of harassment could support a punishment for an incident during deposition but not during a bar association dinner or CLE lecture. Context matters for the First Amendment.

 

      Also, we don't have any precedents to asses 8.4(g)'s constitutionality. We do have case law about discrimination and sexual harassment. These are developed in the context of workplace environments. We don't have ethics rules enforcing prohibition on harassment. I argue that in these social contexts, the government's interest is quite low, and tailoring must be extremely narrow to survive additional scrutiny. Even before 8.4(g) was adopted, attorneys often found themselves in the midst of an inquiry into when lawyer conduct has a sufficient nexus with fitness to practice law. Now, discipline can be imposed for conduct merely related to the practice of law and totally unrelated to the direct representation of clients.

 

      It is against this backdrop that the chilling effects of Rule 8.4(g) must be assessed. As drafted, the rule could discipline a wide range of speech on matters of public concern at events that have only the most dubious connection with the practice of law. Though these laws may survive a facial challenge, they are quite vulnerable to individual challenges. And again, if you're not familiar with the difference, a facial challenge to speech might be tough. You have to show that it's unconstitutional or below regard, depending on the rule. But if a person is disciplined, then they can mount an as applied challenge to their conduct.

 

      Unfortunately, we don't know. If your jurisdiction adopts Rule 8.4(g) -- good luck, Vermont. Some lucky attorney can become a test case with his or her livelihood on the line. This is not a mere academic exercise. I am not aware of any actions brought in Vermont or other states that have adopted similar rules, but maybe you'll be the lucky one. Who knows? Therefore, states must be very careful about adopting this novel, new approach to discipline that may end up censoring speech on matters of public concern. Maybe the courts will reverse those punishments, but that's after years of litigation and where your license might be on the line.

 

      Next, I'd like to talk about the broad sweep of Rule 8.4(g). The comments to 8.4(g) provide several examples of the various fora where the regime would apply such as social activities or bar association functions. However, this rule does not offer examples of the types of speech that are deemed harassment. As speech bears a weaker and weaker connection to delivery of legal services, the bar's justification in regulating it becomes less and less compelling. The bar lacks a sufficiently compelling interest in censoring an attorney who makes a remark deemed demeaning at a CLE lecture or makes a comment viewed as derogatory at the dinner table during a bar association gala.

 

      These are the sorts of problems that can be resolved by refusing to re-invite offending speakers, not by threatening to suspend or revoke a lawyer's license. Here, the nexus, the connection between the bar's mission to regulate the practice of law is far too attenuated to justify this incursion into constitutionally protected speech. A private sphere must remain in a lawyer's life when it is separate from the practice of law or representing a client and does not reflect a lawyer's fitness or prejudice the administration of justice.

 

      Finally, there's a separation of powers element to this analysis. It is not surprising that disciplinary actions for speech fall from three heads: first, conduct during the practice of law, representing a client; second, conduct that reflects on a lawyers fitness to practice; and third, conduct prejudicing the administration of justice. State bar associations are chartered to provide these regulatory purposes. Disciplinary committees do not have balanced discretion over all aspects of an attorney's life. Like all administrative agencies, bar associations only have the authority that the relevant state legislature has delegated. When a bar association attempts to regulate conduct beyond its jurisdiction, the action is ultra vires.

 

      Beyond the First Amendment implications of 8.4(g), state courts should consider whether bar associations even have the statutory authority to assert jurisdiction over speech that is increasingly attenuated in the practice of law. It is not enough to simply say, "This is what we're supposed to do." The law demands more. So as matter of separation of powers under state constitutional law, 8.4(g) may also be impermissible.

 

      Next, I want to talk about Comment 4. It provides in part that lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives and a recruiting, hiring, retaining, and advancing diverse employees or sponsoring diverse law student organizations. This rule is well intentioned, but it has a viewpoint discrimination. It sanctions one perspective on a divisive issue, affirmative action, and punishes those who take the opposite perspective. If you favor affirmative action, you're fine; if you oppose it, you're in trouble.

 

      This is unconstitutional, blatant unconstitutional viewpoint discrimination. If a bar association held a debate on affirmative action, one speaker who promotes racial preferences, he's protected. Another speaker critiques racial preferences, he's not protected. This is so blatant, preferring one perspective over another, that the entire comment, I think, taints the rule. The ABA included this. Why did they include it? Because they were worried that by favoring racial preferences, a conservative might bring some kind of disciplinary action against them and might get them in trouble. So they protected one speech but not the other. This is such blatant viewpoint discrimination I think the entire rule falls on it.

 

      Moreover, and let me make this point bluntly again, the speech that's prohibited by 8.4(g) affects people who are on the right side of the spectrum. Speech supporting a right to same-sex marriage would not be derogatory; speech critiquing it will. This sort of speech code will affect primarily those on the right. For those who follow speech codes on campus and current debates about political correctness, we do not need lawyers incorporating this sort of regime into the practice where our livelihoods now may be on the line.

 

      Next, I want to talk about a recent case decided by the Supreme Court, National Institute of Family Life Advocates v. Becerra, NIFLA v. Becerra. NIFLA considered whether California could require certain medical facilities to display messages concerning the availability of public funding for abortion. This was a law that was targeted at these so-called crisis pregnancy centers that do not counsel for abortion. They favor other approaches.

 

      In recent years, several courts of appeals have held that professional speech could be strictly regulated. The Supreme Court disagreed. The states have certain powers, but it's not unfettered. There's no professional speech exception to the First Amendment. Otherwise, the Court said entire groups of professions would not be protected, and the Court actually mentioned lawyers as a group. The state does not have unfettered power to regulate the speech of lawyers simply because they provide personalized services after receiving a license.

 

      There are certain exceptions; for example, when you have advertising and you want to disclose factual information. You might have a lower level of scrutiny there. But that condition's not relevant to 8.4(g) because it's not about advertising. Second, the Court noted that states may regulate professional conduct if that conduct involves speech. Again, the state can regulate professional conduct that incidentally involves speech, but the state cannot regulate speech that incidentally involves professional conduct.

 

      Now, 8.4(g) straddles that line. It applies to both conduct and word in the practice of law. And as a result, I think that for the Supreme Court to consider this case, they would apply strict scrutiny. Members of the bar would now be faced with this vague standard. What is conduct related to the practice of law? I would not be comfortable litigating on a case-by-case regime an ad hoc standard. In light of NIFLA, I think we're left with a content-based restriction that's applied to conduct related to the practice of law. It cannot satisfy strict scrutiny.

 

      Okay, for the final part of my talk, I want to walk through about 28 states where I have updates. Again, the Christian Legal Society has a very good list. I encourage you to check out their site. I'll do them alphabetically, which is a little easier than chronologically. Alaska, first off. Alaska had a comment period that went through August 15th. The Attorney General of Alaska put in an opinion saying that the rule has constitutional defects. And earlier this month, the proposal was withdrawn for further study. Further study means, "Uh-oh, we're in trouble." There was an unprecedented quantity of comments.

 

      Number two is Arizona. In August of 2018, the Arizona Supreme Court rejected a petition to adopt the ABA Model Rule. It's done there. Arkansas is number three. They're currently studying it. There's no movement that I'm aware of. Number four is California. California revised one of its rules but not along the lines of 8.4(g). In fact, this revision predates 8.4(g). Colorado is number five. A committee was formed to consider it in 2017, but they've tabled it again, constitutional concerns.

 

      Number six is Connecticut. Connecticut is currently studying the rule. D.C. is number seven. There's an open comment period. They have not taken action yet. I'm not optimistic, but we'll see what D.C. does. Number eight is Idaho. The Idaho Supreme Court rejected the rule in 2018. Number nine is Illinois. Illinois Supreme Court rejected it. Iowa. Iowa has a comment period open now through September 30th. If you want to put a comment in, you can do that. Number eleven is Louisiana. The Louisiana Bar said not to proceed. Also, we have an opinion from the Louisiana AG who said the rule is unconstitutional.

 

      Number twelve is Maine. In June 2019, the Maine Supreme Court adopted a narrow version of the rule. It's analogous, but it's not exactly the same. Number thirteen is Michigan. Michigan is studying the rule. Number fourteen is Minnesota. Minnesota declined to adopt it. Fifteen is Montana. The Montana Supreme Court rejected it, and in fact, the Montana legislature adopted a resolution that condemned the rule, so that shows you what they think in Montana. Nevada, number sixteen. They basically had a petition for comments, but then they withdrew it.

 

      New Hampshire rejected the model rule but adopted a more narrow version. Number eighteen, New Jersey, is considering it, but there's not been a public comment period yet. Number nineteen is New Mexico. The New Mexico Supreme Court had a comment period in 2018. No action is taken yet, over a year ago. New York modified an older rule, but they have not adopted 8.4(g). Number twenty-one is North Dakota, which rejected 8.4(g).

 

      Pennsylvania is number twenty-two. Pennsylvania is a weird one. Pennsylvania had one round of -- sorry, Pennsylvania put out one rule for comments, then they put out a second modification for comments, and then they put out a third modification for comments. And this is their third round of public comments. I'm going to submit a comment later this week. I don't know what they're doing. Each revision is worse than the previous one. I don't know what's happening there, but I think they're recognizing that they're having difficulty in buy-in.

 

      Number twenty-three is South Carolina. The South Carolina Supreme Court rejected the rule. Also, the South Carolina AG put an opinion out that said the rule is unconstitutional. Number twenty-four, South Dakota. We haven't heard anything yet, but I read on CLS that there might be a comment period soon. Number twenty-five is Tennessee. Tennessee Supreme Court rejected 8.4(g). We also have an opinion from the Tennessee Attorney General who said that the rule is unconstitutional.

 

      Number twenty-six is Texas, my home state. And our Attorney General, Ken Paxton, put out an opinion that said that the rule is likely unconstitutional. Number twenty-seven is Utah. There was a comment period that concluded in May 2019. No action yet. And the last state I have on my list is number twenty-eight, Vermont, which is the only state -- I'm sorry, which adopted 8.4(g) with some light modifications. And again, Vermont -- I'm sorry, 8.4(g), adopted the rule basically in its entirety. I'm sorry, I misspoke.

 

      Okay, those are my prepared remarks. Let me just give a few concluding thoughts, and then I'll go to Q&A. This is still very much a live issue. I encourage you all to be active in your local bar association. If you see that there are comment periods, you can email me or check with CLS. A lot of these state bars don't have, shall we say, the most transparent processes. They might put a one sentence advertisement in their bar journal, which no one reads, saying, "Hey, we're having a comment period." And unless members of bars flag these things, they go under the radar. And when they go under the radar, things can be adopted quietly.

 

      So please remain vigilant. Check your local proceedings, check your publications, check your newsletters, check your emails, and please flag it to us if you have any awareness of an upcoming rule period. Without question, some states will adopt these rules, and some lawyers will be subject to discipline. And those proceedings may or may not get to court. It's often very expensive. But it's going to happen, and when it happens, we'll have to deal with it.

 

      Those are all of my remarks. I thank you for your attention. You were very receptive audience. You didn't say a word, no interruptions, which is very good. And now I welcome some questions from you. Thank you so much.

 

Micah Wallen:  We'll now go to our first question.

 

Curt Levey:  Hi, Josh. Curt Levey with Committee of Justice here. Thanks for a very clear and, I guess, disturbing presentation. Two questions come to mind. One, you mentioned mostly events, receptions, debates. Would this also apply to things we write, anything from a law review article to an op-ed to a blog post?

 

      And then my second question is there's no question there's a campaign on the left against the First Amendment when it comes to political correctness, going so far as to start referring now to speech as violence, but it seemed to me that it had been mostly limited to that rhetorical kind of thing and to college campuses, maybe policy, maybe broader policy, but that it hadn't really invaded the legal domain. Is this the beginning of the law eroding when it comes to free speech and political correctness?

 

Prof. Josh Blackman:  Thank you for the question, Curt. So the first part doesn't apply to blog posts and other writings. I think that's more of a stretch. It's possible that if you write for a bar journal or something for the bar, that could be covered, although generally I don't think that the bar would publish something that could run afoul of these prohibitions. So I think your writings are probably safe.

 

      Second part, does this rule represent the speech code which is fairly common in other industries and why it's coming to the law, I think it's the start. I do think that members of the bar believe that they can become more proactive. So the same Alaska lawyer I talked to asked me point blank, "Can I deny someone entry to the bar because of their offensive Facebook posts?" And I said, "Absolutely not." And he was stunned. He was like, "Why not? This person is not fit to practice."

 

      The standard of what is offensive is pretty broad. And it's a very common occurrence now where these reporters spend hours going through thousands of tweets and Facebook posts to find some obscure thing that a person wrote when they were 16, and that might be used against them to have denial of a government license. I'm troubled by this. I take some solace in that. I think there's still a majority of bars who recognize the importance of free speech and civil liberties, but I worry that as the current crop of law students become attorneys, that support for free speech will erode. And I do worry about that, which is why I'm so vigorous and active in raising awareness about this provision. Thank you, Curt.

 

Micah Wallen:  We'll now move to our next caller.

 

Jack Park:  This is Jack Park. Thanks, Josh. What does a complainant under 8.4(g) in the speech part have to do? Do they have to be present? Can they read about it? Is there any limitation on their ability to complain?

 

Prof. Josh Blackman:  That's a good question. Now, I think that the answer will probably vary from state to state. The rule doesn't specify whether a person must be present at this sort of speech, although I think the stronger complaint will be someone who was present. But what we often see in the college context is that even if someone didn't witness the speech, they'll say, "Well, he's in my class. I know he's there, and because he's there, it creates a hostile environment." I don't know that 8.4(g) gives liability, but that's the sort of direction that colleges are going to, that even if you have speech off campus that no one actually witnesses, a tweet or a Facebook post, if you later become aware of it, that could then give rise to liability. So I think at a minimum here, the complainant would have to be present. I don't think it would apply to someone who hears that secondhand on hearsay. Thank you for your question, Jack.

 

Micah Wallen:  We'll now move to our next question.

 

Caller 3:  Yes. Professor Blackman, are the jurisdictions that you didn't mention not considering this dreadful rule at all?

 

Prof. Josh Blackman:  What makes this complicated is that we don't have clear reporting from every state. Some states are very transparent. They post on their website comment periods and other things. Other states bury in a bar journal something. Other states have the Supreme Court release an order. So we really have to scrounge for information, and I encourage you to check out the CLS website. It's possible in the states I didn't mention that there are these committees and subcommittees that are considering this internally, and they've not made the deliberations public. So maybe in some period in the future we'll have a comment period down the road. But there's not like a single way to know at any given point what's your status about this rule. We simply can't know that.

 

Micah Wallen:  We'll now move to our next question.

 

Warren Belmar:  Good afternoon. It's Warren Belmar calling again. Excellent. I couldn't agree more with the First Amendment concerns that you've alluded to. One point with respect to the one state that has adopted 8.4(g), Vermont. Their junior senator speaks out a lot against the one percent, which I take it is a socioeconomic class that would fall within 8.4(g), but he's not a lawyer. But the senior senator for Vermont is the former Chair of the Senate Judiciary Committee, Senator Leahy. If he was to address a bar association meeting and spout the Democratic platform, would that be a basis for reporting him to the bar?

 

Prof. Josh Blackman:  Yeah, one of the protected bases is socioeconomic status. So if Pat Leahy or Bernie Sanders got up there and dumped on the rich and said we need to tax the rich more heavily, would a wealthy person find that speech demeaning? Maybe. I don't know. Could that form the basis for a bar complaint? Sure.

 

      Keep in mind, even if a bar complaint leads nowhere and the bar decides this is a waste of time, the mere existence of the rule can chill the speech because he will say, "Maybe I won't give this speech. I don't want to deal with this. I have more important things to do with my life than to fight off a bar complaint at my own expense." So you simply shut up. And I think that's what this rule's designed to do, makes you think twice about opening your mouth. Now, I'm a law professor with tenure. I don't really care. But for a lot of lawyers who do care, and they have clients who might be put off by a bar complaint, the rule does have a chilling effect.

 

Warren Belmar:  I couldn't agree more. I'm just wondering if you went from socioeconomic to all of the other issues that you described earlier, that if you were addressing it from the right rather than the left, might be deemed to be controversial in a bar association context. And you then have someone who is an elected representative making those same comments from the left or from the right. Would they be exposed in Vermont, potential disciplinary action? And it seemed to me it would have to be if it's good for the goose, it's good for the gander, which shows that it's not good for anybody.

 

Prof. Josh Blackman:  Possibly. I don't know. But I think at a minimum, it could give rise to a complaint that's nonfrivolous. I don't know if it would give rise to liability, but it could give rise to a complaint.

 

Caller 5:  Josh, it seems to me like we're being very defensive at this point, and I'm sitting here wondering whether or not there's a way to be more proactive. And the question is would a bar association or would a state Supreme Court which adopted this rule be subject to a 1983 action as a state or local government taking action that violates the constitutional rights of lawyers?

 

Prof. Josh Blackman:  Okay. So I've given some thought to this question, and I think it's asking about a pre-enforcement challenge based on 1983. As a general matter, pre-enforcement challenges are very tough to bring because you have to show a credible threat of prosecution of some sort. And this rule has been adopted in one state and hasn't been used to sanction anyone.

 

      I think that a 1983 suit would be premature, but another option is better. We know that the federal courts don't grant advisory opinions. State courts can, and I can imagine a litigant in one of these states asking their high court for an advisory opinion on whether this rule is constitutional. And that might be an interim measure and a way to test these provisions in advance of someone having their law license threatened. So I would favor, in a state that permits such a proceeding, and not every state does, but in states that permit it to seek some sort of advisory opinion.

 

      Now, if you were to go to federal district court in Vermont and seek a 1983 judgement, I think that the court would say the case is not yet ripe because we're still early in.

 

Micah Wallen:  All right. We'll try and squeeze one more question in here.

 

Caller 6:  The earlier caller actually kind of asked my question. I was particularly interested in the states you didn't mention, and mine is North Carolina. I take it, then, that you haven't seen any activity here.

 

Prof. Josh Blackman:  Thank you for the question. I am not aware of anything in North Carolina. It might still be just under advisement and they're thinking about it, but I've not seen any action.

 

Caller 6:  We'll be careful to take a look and see what's going on then. Thank you.

 

Micah Wallen:  And on behalf of The Federalist Society, I would like to thank our expert, Josh Blackman, for the benefit of his valuable expertise today. We welcome the listener feedback by email at [email protected]. Thank you everyone for joining us today. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.