Idaho Supreme Court rejects controversial ethics rule 8.4(g)

The Idaho Supreme Court recently took the extraordinary step of unanimously rejecting a proposal by the Idaho State Bar Commissioners (hereinafter “the Bar”) that was supported by a substantial proportion of members of the Idaho Bar. Even more unusually, the court wrote a lengthy opinion explaining why it believed the proposal was unconstitutional.[1] This noteworthy move by the court was the latest salvo in the nationwide fight over the adoption of American Bar Association Model Rule 8.4(g), a controversial ethics rule barring attorney harassment and discrimination.

ABA Rule 8.4(g)

In 2016, the American Bar Association proposed Model Rule 8.4(g), which makes it professional misconduct 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.”[2] The model rule utilizes a broad definition of “conduct related to the practice of law,” which includes not only “representing clients; interacting with witnesses” and other in court activities, but also “participating in bar association, business, or social activities in connection with the practice of law.”[3]

Only a small number of states have adopted Rule 8.4(g) in full, including Vermont and New Mexico. Other states have adopted variations of the rule that are intended to remedy some of the perceived constitutional defects. But even those narrower rules have been challenged. For example, two versions of Rule 8.4(g) adopted in Pennsylvania were both invalidated by the Eastern District of Pennsylvania.[4] However, the Colorado Supreme Court upheld Colorado’s narrower version of Rule 8.4(g), finding that “the Rule prohibits such speech in furtherance of several compelling state interests.”[5] Other states have expressly rejected the adoption of Model Rule 8.4(g). The attorneys general of several states, including Alaska, Louisiana, South Carolina, Tennessee, and Texas, have published opinions arguing that the rule would violate the U.S. Constitution.[6]

The Idaho Bar’s Attempts to Adopt Rule 8.4(g)

In 2017, the Bar passed a proposal to enact a version of 8.4(g) (Resolution No. 17-01). But on September 6, 2018, the Idaho Supreme Court rejected the resolution while urging the Bar to “revisit this matter in hopes of narrowing the rule to comport with new United States Supreme Court cases.”[7] Accordingly, the Bar came back with a revised resolution in November 2021.[8]

The revised proposed resolution would have prohibited “discrimination or harassment” either by 1) “engag[ing] in conduct that the lawyer knows or reasonably should know is unlawful discrimination” while “representing a client or operating or managing a law practice or in the course and scope of employment in a law practice”; or 2) “engag[ing] in conduct that the lawyer knows or reasonably should know is harassment” while “representing a client or operating or managing a law practice or in the course and scope of employment in a law practice.”[9] Harassment is defined as “derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status.”[10]

In formulating the 2021 resolution, the Bar narrowed its Rule 8.4(g) from the ABA model rule in four different ways. 1) The harassment must be “severe or pervasive enough to create an environment that is intimidating or hostile to a reasonable person.”[11] 2) Existing antidiscrimination and anti-harassment statutes would govern the application of the resolution.[12] 3) The resolution would not apply to “participation in bar association, business, or social activities outside the context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.”[13] 4) The resolution emphasizes that “[a] lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities.”[14] With these changes, the new proposed resolution was approved by members of the bar by 680 to 329.[15]

The Idaho Supreme Court’s Decision

On January 20, 2023, the Idaho Supreme Court issued its decision rejecting the resolution. The court acknowledged that the new resolution was “narrower than . . . the previous iteration.”[16]. Nevertheless, because the resolution “deals with fundamental constitutional rights,” it is “subject to strict scrutiny when considering whether it infringes on those constitutional rights.”[17]  The court rejected the argument that the resolution was a regulation of conduct rather than speech and therefore did not “implicate[] First Amendment protections” because “the language of the resolution goes beyond the regulation of employment practices and is instead a content-based regulation of speech protected by the First Amendment.”[18]  The court noted in particular that the resolution “singles out certain topics for professional discipline while leaving other topics not subject to discipline,” namely “derogatory and demeaning comments based upon race, sex, religion, identity, marital status, or socioeconomic status.”[19] The court next noted that under the U.S. Supreme Court’s decision in NIFLA v. Becerra, the attorney speech regulated by the proposed resolution was fully protected because “the resolution goes beyond the regulation of employment practices and is instead a content-based regulation of speech protected by the First Amendment.”[20] As such, strict scrutiny applied. 

The court then held that the resolution was not “narrowly tailored to withstand strict scrutiny.”[21] It reviewed at length the decisions in Greenberg and Abrams, but emphasized that Colorado’s rule was “much narrower” and that the proposed Idaho resolution “falls closer to the Pennsylvania rule that was struck down because it contains several flaws that call its constitutionality into doubt.”[22]

The court then laid out what it saw as the resolution’s three fatal flaws. First, the resolution was both content- and viewpoint-based, singling out only speech that is both “derogatory or demeaning” and “based on a specified protected status.”[23] Furthermore, the resolution did not limit itself to “harassment against individuals because of their protected status” as Title VII of the Civil Rights Act does, but applied more broadly to any “harmful speech” about protected status.[24] This lack of a clear “nexus between protected classes and harmful speech” was fatal to the Bar’s argument that the resolution was not constitutionally suspect since it “closely mirrors the language contained in Title VII.”[25]  And the law could not be said to be “the least restrictive means” in light of Colorado’s “significantly narrower” rule.[26]

Second, the resolution was overbroad because it swept in a wide variety of protected conduct. The resolution’s attempt to narrow the model rule by exempting “participation in bar association, business, or social activities outside of the employment context does not narrowly define the situations where the rule applies, and therefore, clearly implicates a substantial amount of protected speech.”[27] It was particularly “difficult to conceive of a law firm partner or attorney who participates in bar association activities and business that are not in connection with their law practice.”[28] Accordingly, the narrowing comment in fact “appears to confirm that a large swath of otherwise protected bar association, business, and social conduct would fall within the Resolution’s prohibitions.”[29] The resolution also delegated to the Bar “unbridled discretion to determine whether an attorney has committed misconduct under the proposed Rule 8.4(g)” and therefore failed to provide “a sufficient framework to define harassment.”[30] The resolution was therefore overbroad.

Third, the resolution was unconstitutionally vague. The resolution “leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct.”[31] The court listed a few hypothetical scenarios that would fall into a gray area including a firm’s holiday party, a business dinner with some (but not all) of the firm’s partners, and attendance at the Idaho State Bar Annual Meeting if required by one’s law firm.[32] “These hypotheticals merely offer a small example of the gray area created by the Resolution regarding what type of attorney conduct and speech would rise to the level of professional misconduct.” [33]And it was likely that “protected speech could be chilled due to both the Resolution’s expansive scope and its undefined terms.”[34]

As a result of these significant defects, “this Court has unanimously declined to adopt” the resolution.[35] While the court was “reluctant to reject the Bar’s efforts to rein in unlawful harassment or discrimination,” it could not “put [its] imprimatur” on a resolution that “does not pass constitutional muster.”[36]

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