American Bar Association Model Rule 8.4(g) defines professional misconduct in relevant part as “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.” Because the 8.4(g) professional misconduct definition is broad and applies to a wide swath of undefined activity, the model rule has prompted spirited debate in light of the serious competing interests implicated.
Join us for a discussion of contrasting views from Professor Josh Blackman and Mr. Robert Weiner.
Josh Blackman, Professor of Law, South Texas College of Law Houston
Robert Weiner, Partner, Arnold & Porter Kaye Scholer LLP
Moderator: Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society
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Nick Marr: Welcome everyone to this Federalist Society Teleforum conference call as this afternoon, April 7, 2021, we're hosting a discussion of ABA Model Rule 8.4 (g). I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.
As always, please note that expressions of opinion on today's call are those of our experts. And we're joined by a great panel. I'm going to introduce our moderator and she'll take it from there.
And we're very pleased this afternoon to be joined by Ms. Kim Colby. She's the Director of the Center of Law and Religious Freedom at the Christian Legal Society. Now, Kim's going to give a little bit of background on the Rule. We'll have opening remarks from our panelists, a bit of moderated discussion, and then we'll open up the floor for audience questions. So we'll be looking to you at that time.
And, with that, Kim thanks very much for being with us. I'll give the floor to you.
Kim Colby: Thanks so much, Nick. It's a privilege to moderate this discussion between two experts on ABA Model Rule 8.4 (g), Robert Weiner and Professor Josh Blackman. Both have previously discussed the Model Rule at several earlier Federalist Society events and both have written law review articles on the Model Rule.
Robert Weiner is a partner at Arnold & Porter in its Washington D.C. office. After graduating from Princeton University and Yale Law School, he clerked for Judge Henry Friendly and then for Justice Thurgood Marshall. Mr. Weiner has also served in government. From 2010 to 2012 he was Associate Deputy Attorney General at the Department of Justice. He also has served as senior counsel in the White House counsel's office and as an associate independent counsel.
Professor Blackman graduated from George Mason University School of Law. Since 2012, he's been a professor of law at the South Texas College of Law in Houston. He also is a non-resident scholar at the Georgetown Center for the Constitution and an adjunct scholar at the Cato Institute. Professor Blackman is a national thought leader on constitutional law and the United States Supreme Court, and he's a daily blogger with the Volokh Conspiracy. He's a prolific writer with three books including his latest, An Introduction to Constitutional Law, which was a top five best seller on Amazon.
ABA Model Rule 8.4 (g) is a Model Rule that every lawyer and law student should understand. I will very briefly describe the Rule. A copy of the Rule and more materials on it can be found on the Christian Legal Society website, christianlegalsociety.org.
ABA Model Rule 8.4 (g) was adopted by the ABA House of Delegates five years ago in August 2016. And I'm going to read the text of the rule: "It is 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, in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules."
That's the Blackletter Rule. There are three lengthy comments, which I won't read, but accompany Rule 8.4 (g). They are numbed are comments 3, 4 and 5. Comment 3 attempts to define discrimination and harassment; comment 4 addresses the Rule's scope -- what the term conduct related to the practice of law covers; comment 5 addresses sundry aspects of the Rule.
It's comments 3 and 4 that are the source of several concerns about the Rule's impact on attorneys' First Amendment rights. After the Rule was adopted in August 2016, the ABA encouraged state supreme courts to adopt the Rule for the attorneys in their individual states.
To date, two states have adopted the rule verbatim, Vermont and New Mexico. And two states have adopted a modified version of the Rule, Maine and Pennsylvania. Pennsylvania's version did not go into effect due to a federal district court injunction and we'll likely hear more about the Greenberg decision today in our discussion.
So with that introduction, I want to turn to Professor Blackman to start our discussion. He'll have ten minutes to speak, and then Mr. Weiner will speak for ten minutes. And then we'll have some additional questions and comments followed by about 15 minutes of questions from the listeners.
Professor Blackman, would you please begin.
Prof. Josh Blackman: Thank you so much, Kim. It's a pleasure to be here. I also want to thank Rob. We've made this a bit of a traveling road by now. We've done this, I think, it would be a half dozen times in different forms, and he's always a good sport to debate this issue.
So let's get some things out of the way about Rule 8.4 (g). The Rule, I think, was well-motivated. I think this Rule was crafted to address a gap in the ABA's Rule of Ethics that had been around for some time. While this Rule was being drafted, there was extensive discussion about sexual harassment. As I'm sure many people know, if you have a hostile work environment, which is sometimes defined as a severe pervasive work environment, employees can bring claims against co-workers and managers for sexual harassment.
But that Rule isn't necessarily a good fit when we're dealing with people who don't work with each other. So the classic example was: Sexually-charged comments made during depositions; sexually-charged comments made during contract negotiations; sexually-charged comments made, perhaps, in the boardroom. And these are scenarios where it's not clear that employment discrimination law had much of sway.
So I think, in large part, these Rules are motivated by a desire to root out sexual harassment in the legal profession. And I have no qualms with that objection. I think it's a well-motivated objection. The problem becomes, though, is that the Rule that was drafted, I think, went a bit too far. It did a couple of things that I want to focus on. Three things in particular:
First, the Rule expanded the scope of the Bar's jurisdiction. That is the type of conduct the Bar can regulate. It extends to, "Conduct related to the practice of law." Right? Conduct related to the practice of law. So we're not simply dealing with the legal practice, but some other type of ancillary conduct of conduct related to the practice of law.
And the Rule specifically addresses social functions such as Bar dinners. For example, we were all in person and this was being held at a restaurant in D.C. and not my home office in Houston, we would probably be engaging in conduct related to the practice of law. You're sitting here listening to a speech trying to get CLE credit. So that's a very broad definition of conduct.
Second, the Rule uses the phrase harassment, harassment. Now, the term harassment does have a somewhat settled meaning when we're discussing sexual harassment in the context of employer conduct within Title VII. But it uses the phrase harassment more broadly and it, perhaps, defines harassment to include derogatory or demeaning speech on one of the protected bases. This is a very nebulous concept that's not entirely clear what it will mean.
And this vagueness leads to a chilling effect. Attorneys who are afraid of, perhaps, running into liability will self-censor. They will simply choose not to speak on controversial topics. And we all know that bar committees are overworked, understaffed, under-resourced. And they very likely don't have the power to go after all these types of frivolous complaints. But what I think will invariably happen is that the fear of a complaint might be enough to chill speech.
And let me give you an example that is ripped from the headlines. Rob, do you teach at Georgetown, I think? I think you're an adjunct there, right? If I remember correctly. Let's use an example from Georgetown. So, recently, there was an incident at Georgetown which you may have read about. There were two adjuncts that were teaching a class on negotiation. The class had already concluded but the professor stayed on their Zoom call to discuss grading papers. They were going through grading. And one of the professors, you know, made some comments. And she said, and I'm paraphrasing, black students tend to be at the bottom of the class.
It was unclear exactly what context she was saying it in. We only had a small snippet of the recording. And I'm not here to defend the professor. I've done elsewhere, but that's not why I'm here today to speak on it. Let's just tweak the hypothetical. Let's say the professor said, "I consistently found that minority students are at the bottom of my class and I fear that the school's affirmative policy may be to blame for that." She might be claiming the mismatch thesis which is very controversial but it's one a lot of people subscribe to.
And let's say the professor didn't make this on a private Zoom call, let's say they made it at a public Bar function. Although I query whether 8.4 (g) would apply to legal education. I truly think that my job is related to the practice of law; I'm teaching people how to get their law degrees. But let's just table it. That comment led to massive outrage, resignations -- actually, she didn't resign, the Dean fired her first. She tried to resign; The Dean wouldn't let her. Would making a comment that would appear in, let's say, Justice Thomas' decision that discusses something about race but someone could find good meaning, would that give rise to liability under this rule? I think so.
And the upshot, then, is people simply won't talk about these issues. And maybe that's [inaudible 11:45] good, that we shouldn't talk about these issues. But 8.4 (g) puts a crimp on a lawyer's ability to speak about controversial topics if he or she will know that someone might find it demeaning on the basis of race or sexual orientation or any other sort of prohibited bases.
So I think this Rule can be salvaged, and I don't take the position that this has to be up -- deleted root and branch. I think this could actually be done in a better fashion. For example, if the Rule were to have some sort of severe component, whether it's severe or pervasive. Where a single offhand comment would not be enough. I think you have to have a significant exception for speaking matters of public concern.
I would be very hesitant to apply this to Bar functions and the like. That's going after a very fertile form for debate which is CLE functions which is something that all lawyers require a regulation to accomplish.
So I think this rule can be improved. I would probably also contract comments related to the practice of law to the practice of law. I know that the Bar has the jurisdiction to go after all these other activities. If this Rule is narrowed, I think we might have some success. Now, you may not agree with me, and you think that I'm just, you know, I'm proposing this to this as just another white guy. Someone who actually worked as a law professor at NYU said that I'm just another white guy imposing this Rule. Okay. That's fine
But, recently, a federal court judge who, I guess, is also a white male declared this Rule unconstitutional in Pennsylvania. It wasn't 8.4 (g) exactly, it was a variant. In the case with Greenberg. Greenberg was a lawyer for FIRE, which is the Foundation for Individual Rights and Education. FIRE speaks on issues of sexual harassment and sexual assault and Title IX and some pretty heavy issues. And he said, "I would fear someone filing a Bar complaint against me if I spoke under this Rule." And the court said that this a form of viewpoint discrimination among other things.
The entire notion of defining what speech is and is not offensive, is an odious task for the courts. They don't want to do it. They're not in the business. So, perhaps, if they can define with more specificity what type of conduct is prohibited, what type of speech is barred, I should say. But, in doing so, it becomes more clear that there's a viewpoint discrimination. The views on one side of the political aisle are okay but views on the other side are not.
So I think I'm almost out of time. I'll wrap up here. Again, I think 8.4 (g) was well-intentioned. I think it can be improved, but currently courts are spinning their wheels. State courts that are still considering whether to adopt the versions drafted, really should go back to the drawing board. The ABA did not take this seriously enough when they were drafting it. I think they could have anticipated some of the First Amendment objections and address them, but they didn't. And so as a result, most states have rejected it, a couple have adopted it and now they have one federal judge saying it's unconstitutional. And, by the way, Pennsylvania's not even appealing it. They filed notes of appeal are, but they withdrew it and I think they're going to try to go back to the drawing board which I think is a wise choice.
I think I'm right at ten minutes. I'll stop here and thank you all for your attention.
Kim Colby: Thanks so much, Professor Blackman. Mr. Weiner, we look forward to hearing from you.
Robert Weiner: Thank you and thanks to The Federalist Society for hosting this discussion. I admire The Federalist Society's practice of making sure that it hears both sides of these issues. I've debated this and other topics previously including with Professor Blackman, and I thank him for listening to me for these few minutes.
One of my favorite, ostensibly good stories is about J. Edgar Hoover. He used to insist that all the memos to him be one page and he'd write instructions in the margins. And there was an ambitious young FBI agent who was eager to cram more into the one page and so he expanded the margins leaving Hoover no room to write his notes. And, so, Hoover scrawled across the memo, "Watch the borders." And, so, the next three weeks the FBI stepped up surveillance at all the ports of entry.
So, I think, like the FBI's border alerts, some of the criticism of Rule 8.4 is misdirected and founded on misinterpretations. The Rule is not unprecedented, it's not really all that new, and it's very unlikely to spawn a parade of horribles that I think some people fear. To show why this Rule isn't a big deal, let me explain by saying some of the propositions on which I think we all agree.
First of all, some advocates of Rule 8.4 lawyers do not trade their First Amendment rights for a Bar license. Second, impositions on lawyers' speech should receive no more or less scrutiny than impositions on anyone else's. But within the constitutional boundaries, I think lawyers should be held to a higher standard of conduct relating to the practice of law. Third, the First Amendment doesn't permit discipline for a CLE speech against same-sex marriage or holocaust denial or any other controversial topic. And precisely because the First Amendment protects such speech, 8.4 cannot be and should not be interpreted to reach it. A fourth, and I think there's an important distinction between discriminating and abdicating discrimination, and lastly, I think Georgetown can discipline people for speech in ways that the government, any governmental institution cannot do.
But first, why do I think that this is not new? Well, it doesn't do very much new. At the time Model Rule was adopted, 24 states and the District of Columbia had some anti-discrimination law in the black letter of their Rules. Thirteen more states had it in comments to the Rule. For several years, it has been part of the standards for the prosecution function and the standards for the defense function. It has been in the Code of Judicial Conduct since 2007.
But in its scope, I think it's not new that the Rule applies beyond representation of a client that's been prudent in at least ten states. It's not new that the Model Rule regulates the business of legal practice. It ruled through that already. It's not new that it regulates lawyers' speech. In case you haven't noticed, lawyers talk for a living. Sometimes incessantly and nearly always too much, but any regulation of a lawyer's involves speech. It can reveal competence of your client; you can't say certain things to a non-representative party; you can't make public statements that would taint a jury pool.
And the Rules already cover a lawyer's professional life outside the courtroom or of client relationships. They prohibit conduct involving dishonesty, fraud, deceit, or misrepresentation at any time at in any context. Even before a Rule 8.4 (g) , New York found that a lawyer who pinched a colleague's buttocks at a social event of a professional nature and engaged in conduct that cast doubt on his fitness to practice law.
Now, the Rule's arguably more extensive than any single state, but it has very little, if anything, that was not already in the rules of at least one other state. In fact, it's clearer and less expansive than some states' rules. Instead of the language of Alabama's -- 8.4 Alabama has a catch-all that prohibits engaging in any other conduct that adversely reflects on fitness to practice law. Indiana and Missouri's rules have some of the same language as the ABA's but without the [inaudible 20:33] requirement. Florida's rules bar conduct and can connects with the practice of law. It's prejudicial to the administration of justice including knowingly or through callous indifference humiliating or discriminating against litigants, jurors, witnesses or personnel or other lawyers on any basis. Michigan requires lawyers to treat all persons involved in the legal process with courtesy and respect. I know many lawyers who would be tripped up by that one.
Now, let's talk about why this doesn't -- if it doesn't cover much new territory, why -- whether it -- when it covers chill speech. To claim such a chilling effect, I think it's necessary to speculate that someone attending a lawyer's speech will find it offensive. That that person will be motivated to file a disciplinary complaint that the Bar counsel will not dismiss that complaint as frivolous without ever contacting the lawyer, but instead will require the lawyer to file a response. And then after that response, our counsel will decide to proceed with a disciplinary action. All those are speculative, particularly since they've never happened.
And these speculative sequences of events do not exhaust the steps that would be necessary for discipline would, actually, be imposed. Two arises from a realistic prospect of enforcement and I think there's no realistic prospect, but beyond that there's no empirical evidence of the chill. To be sure, courts make chill determinations all the time without demanding evidence. But we're in a different context here, we're in the context of formulating a rule and I think it's fair to ask for evidence for a data-driven resolution of this issue, particularly when rules similar to this have been in effect in 24 states for years and in different ways. Some apply to outside the courtroom and some in so that I have some kind of comparison in terms of what goes on in those states and what the effect has been is possible.
Now, let's turn to the question of slip ups and using derogatory terms. As I said, Georgetown can do things that the government cannot. It would be unconstitutional to bring the power of the state to punish the professors for what they said. The comments that constitute discrimination, conduct must be harmful, must manifest bias, or prejudice towards others. And it must be something that is knowingly harmful or that someone should have known is harmful with the intent standard and harassment, I think, has an accepted meaning. You get to the conclusion that the lawyer must know, or reasonably should know, that his or her conduct will inflict harm on an individual.
I do not believe that hurt feelings are harm. The First Amendment does not have a hecklers' veto, and I don't accept that people are so fragile that they must be shielded from hearing things they don't like or that bother them. But speech can inflict harm -- public harassment, humiliation, intentional infliction of emotional distress is actionable even if Rule 8.4 does not and should not punish the stupid, isolated remark or the use of an epithet in a context where it's not intended to be an instrument of offense.
I think, finally, with regards to whether conduct should be severe: Yes, I think it should have to be severe to violate Rule 8.4. I disagree with the ABA's opinion in that regard. The comment refers to the federal, to the practice of harassment in discrimination cases. That requires that the conduct be severe or pervasive. That's because it must lead to a hostile work environment. That's not the same context so the pervasiveness may not apply, but there's no reason to jump the severity requirement.
So I think you'll find that Professor Blackman and I agree more than we disagree. And, with that, I've gone 45 seconds so I will end.
Kim Colby: Well, thank you both for those very helpful insights into the Rule. I'd like to give each of you two or three minutes to respond to what the other has said or to add something you feel should be said. Professor Blackman, if you would go --
Prof. Josh Blackman: Sure.
Kim Colby: -- first and then Mr. Weiner.
Robert Weiner: Yep.
Prof. Josh Blackman: Thank you. I think Rob and I have in large areas of agreement and I think we see the First Amendment in a largely similar fashion. I think the only big disparity is how much we trust people not to file frivolous complaints. I think he said he doesn't think people are that fragile. I don't know, maybe I lived in an academy too long. I think I'm probably jaded about fragility. There's a book by that title, I think, or something like that.
I would hope, though, that states could perhaps take Rob's counsel and maybe tweak a more knowledge-tailored Rule. At this point, simply adopting the Rule's going to lead to litigation which is timely and expensive and creates discord. I think if four or five years ago the ABA had taken this more seriously, we wouldn't have had this, sort of, visceral reaction having dozens of states would have already adopted the Rule. So the unwillingness to take the complaints that I've been raising seriously, I think, has created much acrimony.
So what happens going forward? If I were the ABA, I would go back to the drawing board. But instead the ABA put out an opinion that my friend mentioned that, I think, glossed through a lot of things, didn't cite case like NIFLA v. Becerra. Recent SCOTUS precedents cast doubt on it. So I think the ABA going to ostrich mode, digging its head in the sand, and not recognizing that they could really provide a public service by starting over from scratch and giving something the states can actually adopt meaningfully, consistent with what Greenberg held.
Kim Colby: Mr. Weiner?
Robert Weiner: Yes, let me just say, I wholeheartedly agree that you can't defeat a First Amendment argument with a trust us scenario, but -- although the prospect of a political check can sometimes be an effective response. But I think I'm not trusting anybody not to bring these claims. I think I'm not even trusting; I'm expecting that the government will have to apply a rule of constitutional avoidance. And that rule of constitutional avoidance will require that this Rule be interpreted in a way that doesn't have it inflict First Amendment harms, that it cannot constitutionally inflict.
Kim Colby: Okay. I'm going to ask a couple of questions. Some of it -- my question largely flows from what both have you have noted, and that is that the concerns about the Rule have tended to come from people, for lack of a better word, that we could categorize as conservatives or people who are more orthodox in their religious beliefs, kind of two separate categories there, who are just very concerned about what the Rule could mean for some of the reasons you all have touched on . But I'm curious as to why -- to whether people that we might call liberals or progressives, whether those attorneys should also be concerned about the Rule, in your opinion, and if not, why not? And I'll ask you, Mr. Weiner, first and then we'll let Josh go second.
Robert Weiner: I think that they should have the same concerns that conservatives have. That the First Amendment applies equally. I think there's -- I think the liberals would be -- if they allow this Rule to be interpreted in ways that prevent a speaker, for example, from saying that he or she believes same-sex marriage should not be constitutional or that it is a sin in the site of God, I think that if that's fair game, then someone expressing opinions on open borders or, Josh had the opposite opinion on same-sex marriage would be fair game, as well.
And, so I think there should be equal concern about an interpretation of the Rule that would go too far. My only argument here is that the interpretation doesn't have to go too far and because it doesn't have to, it necessarily as a constitutional matter cannot go too far.
Kim Colby: Professor Blackman?
Prof. Josh Blackman: Yes, I think that's my cue. You know, we didn't even measure the exercise here, and I think that's an important element that we discuss. Kim is, perhaps, being modest as the moderator -- modest moderator -- you know, she's been involved in this from the perspective of the Christian Legal Society now for several years and I've often called her for updates on what things are going on in the country.
But a lot of people who object to this are people of faith. And they're aware that this Rule can be used to craft chill speech not just on political matters but also religious matters. So imagine you're an attorney, and you're speaking at some church function and you're talking about church doctrine and many church doctrines are, perhaps, are in tension with modern notions of progressive equality and however you want to define that term.
So I think the First Amendment is a first line of defense for 8.4 (g). But if this was actually enforced against certain Christian lawyers, I think you'd have as applied free exercise challenges, as well. We're probably not going get that far, but that issue does lurk in the background.
Kim Colby: It's, sort of, along the same lines. I wanted to ask: so comment 4 of the Rule it says that lawyers may still engage in promoting diversity and inclusion without violating the Rule, and it gives its examples initiative aimed at recruiting, hiring, retaining, and advancing diverse employees.
So I'll start with you, Josh. I have heard an ethics speaker say that, actually, there should be concern those types of programs to promote diversity and inclusion within a law firm might very well be in violation of this Rule. Do you think that's true or do you think that's actually not? That this carve-out in comment 4 is a valid one?
Prof. Josh Blackman: Well, look, there's something called viewpoint neutrality, right? And viewpoint neutrality means that the government can't pick a side and debate. I think that the comment that Kim read a moment ago had some viewpoint problems because it expressly favors one-sided debate, those who favor diversity and inclusion efforts.
Anybody would say, Josh, who could oppose diversity and inclusion? Lots of people. The people who don't agree with diversity efforts. Okay? Affirmative action was actually harmful to minorities who think, in many regards, it violates federal law. So this comment has taken an express position on the diversity issue. It's on one side and it's allowed, and I think the fact that this Rule is there reflects a deliberate effort, right? They will worry that you have all these right-wing rabble rousers filing lawsuits against diversity committees. Saying, "See? They're being racist. Reverse racism." You know, the argument. And so they basically carved out their own activity.
I think that form of viewpoint discrimination renders this entire Rule probably, at least, the comment void and perhaps -- unclear if a rule is severable from the comment. That's, actually, a fascinating question: if the comments are unconstitutional, would the rules sever the comment? But would they want the Rule without the comment, and give us liability for diversity efforts so maybe you just kill the entire Rule. It's actually a fascinating severability question which we could, perhaps, debate another time.
But I think you can't just presume diversity efforts are okay, but those opposed to diversity efforts are not. A related issue that some states are imposing requirements for CLE that need to have a certain number of hours for diversity and inclusion credits. And depending on how those words are worded, there might also be a form of viewpoint discrimination because only certain types of classes are allowed. I've spoken at these so-called diversity hours, which [inaudible 34:57] is unconstitutional. I criticized 8.4 (g). That's fine, but they start denying my ability to speak on criticism of those efforts, then I think you have viewpoint problems.
Kim Colby: Go ahead, Mr. Weiner. Yes, go ahead.
Robert Weiner: Yeah, I don't see the constitutional problem there because it just says what the Rule does not cover. The Rule doesn't cover diversity efforts. It doesn't mean that it does cover the contrary position and so I think it's just clarifying what some people were worried about which is that it might be interpreted to cover diversity efforts.
And, by the way, I think diversity does not just cover racial or ethnic I think it covers all sorts of things, geographic and religious and so I think diversity is an inclusive enough concept that it, too, needs some neutrality baked into it. Not the way some people apply it but I think just in the very nature of the word.
Kim Colby: Right. I think you've alluded to but maybe we could spend just a few extra minutes before we take listeners questions. You've both -- one or both of you have alluded to the decision by the Pennsylvania federal district court last December regarding the Rule. Could you expand just a little bit on why you think that decision by the federal district Judge there was correct or was wrong. And I'd like, Mr. Weiner, if you'd go first that would be great and then you Josh.
Robert Weiner: Sure. I think that the decision was incorrect because the court said, well, there's a threat, you know, there's an injunction so it had to be a showing of a legitimate threat to the free speech in order for the injunction to issue. And the court said, well, there's a threat because he cited a number of examples where people had -- like the Georgetown examples where something like that had occurred, but none of those involved a practicing lawyer making a speech where somebody had filed a disciplinary complaint. None of them involved that.
And, so, I think some of them involved criticism of Supreme Court justices which is fair game. Some of them involved criticism of professors, but none of them involved, I think, the indication of the attorney disciplinary system and so I still continue to believe that what the court could have done, in that circumstance, was say the Rule can't be interpreted this way.
And, by the way, if the court says the Rule can't be interpreted this way that in and of itself would alleviate the chill and he could have said I'm not going to read it that way because of the Rule of constitutional avoidance, and I believe it would have solved a lot of problems rather than striking it down. That said, I believe that Pennsylvania, in the way that they re-wrote the rule -- again, an object lesson in how not to do it. They, basically, led with their chin in their re-writing of the ABA Rule that exacerbated any vulnerabilities.
Prof. Josh Blackman: Yeah, I think I wasn't sure there was standing in this case and if the court had dismissed it for lack of standing, I wouldn't have been surprised. Pre-enforcement challenges are very tough of the First Amendment. The doctrine just is not favorable. So I think that might have been a vulnerable ground for this to . . .
On the merits, I think the judge got it right, stating instructions that they work with Obamacare. They don't work with the First Amendment. And how they don't think it's court's job to add narrowing construction. If Pennsylvania wants a new rule, they can draft it. This is not legislation; it's not owed the duty of avoidance that it usually would. It's a rule promulgated by a board. I wouldn't give it any deference, an act of legislature, an act of Congress. They can re-write the statute, the rule, in a fairly short period. It's not hard and I hope they will do so.
Robert Weiner: I'd say that the Rule is maybe proposed by a board and enforced by a board in the first instance but, for the most part, they're court rules promulgated by the Supreme Courts in the various jurisdictions. So, in that sense, I think they should get some constitutional deference.
Kim Colby: Great. Next, do we have questions from the listeners?
Nick Marr: Okay. Let's open up the floor and there you have two in the queue. So we'll go to our first one now.
Caller 1: Yes, hopefully, you can hear me now. It's a fascinating discussion. I really enjoyed it. Curious. I'd like to maybe propose a third option. I know both speakers have been working from the presumption that, you know, this Rule is good or something like it is good, but perhaps maybe Supreme Courts, Bar Associations and so forth are getting into a space where they really don't belong.
I mean, admission to the Bar is not canonization. There are a lot of good, virtuous law ideals from various people's perspectives that we don't make conditions of employment. And especially areas where there is the potential for significant disagreement and, particularly, in this profession in which disagreement is the stock and trade.
I was looking at the news report today about the Michigan lawyers who were caught up in the fraudulent debt collection scheme. And, perhaps, the Bar should pay attention to higher priority issues in terms of republic esteem we have in the eyes of the public rather than trying to legislate some particular group's perspective on morality. The fact that religious implications come in here reflects that maybe some certain subset of people's values are being imposed, perhaps, inappropriately.
Prof. Josh Blackman: I'll start. Rob's welcome to respond. I share your sensibility which is why I would narrow the scope to, actually, the practice of law and not conduct related to the practice of law. I think that's significant.
If you're in a courtroom, you're engaged in a legal practice, you're negotiating, you're deposing someone, I think the Bar does have some autonomy to regulate the conduct. But once you start deviating from that sphere, I think the Bar's influence is far less. I don't think becoming a member of the Bar makes you a canonized saint. I don't think they have the ability to tell you what ideas you can and cannot have.
And I think it's dangerous. Five generations ago, communists were trying to be excluded from the Bar and there was radical opposition to that with good reason. I think we have a society built for differing opinions. If I can quote my least favorite justice, Oliver Wendell Holmes, we're a society of different people.
So that’s why I think the Bar, perhaps, went too far. We have employment discrimination law which covers some issues, not everything. If someone actually pinches it -- a behind, this is the example Rob gave, that's a battery last time I checked and needs to be punished for committing a battery. You know, if you actually stalk someone and harass someone, there are crimes for that. But the Bar, I think, has gone a bit too far to try regulate all facets of conduct that might relate to the practice of law.
Robert Weiner: I think we get certain privileges as lawyers. We get a monopoly; we get subpoena power where we get the right to fish through other people's files. I think it's fair for the Bar to demand some higher standard of conduct in return for those privileges. I'm quoting from edition on discrimination and harassment, but not, let me be clear, sacrifice the First Amendment rights are not to be part of the bargain.
There are other laws like employment laws that would cover some of the things that are covered by Rule 8.4 (g), but one of the other things that the Bar gets is a privilege of self-regulation. And regulation that is supervised by the court and not by the legislature. And that has advantages in that it permits us, for example, to have a little freer reign, I think, in representing unpopular causes and taking unpopular stances. Judges, lawyers tend to understand that more than a popular legislature might. And, in that sense, and judges who have some insulation from the vagaries of public opinion, I think, are a better regulator.
But that only is going to persist so long as the judges and the public have confidence that the legal profession is doing a good job of regulating itself and, therefore, I think that remitting some of this regulation to the general laws -- although anyone can invoke those general laws -- but relying on those primarily, I think, puts regulation in an area where it is not to the greatest advantage of the profession or, ultimately, to the clients that we serve.
Kim Colby: Great. Nick, do you have another question for us?
Nick Marr: Yes, we've got three in the queue, so we'll go to our next one.
Jerry Hunter: Yes, this is Jerry Hunter in St. Louis and I have a question or, at least, a comment and I guess a question. Attorney Weiner, you mentioned -- you cited the New York case, I think, a case out of New York in your presentation where a lawyer had pinched the buttocks of another lawyer and that was found to be inappropriate and maybe a violation of the disciplinary rules. And I would assume you would agree that since there are court cases that say one instance -- that one instance of physical touching may constitute harassment, sexual harassment.
I would assume you would agree that the touching -- the New York case, since it involved the physical touching, would simply be different from cases involving pure speech because clearly the physical touching probably is covered by the ABA Rule, whereas some of the speech cases, they may be debatable some of the speech cases.
Robert Weiner: I agree with you; speech is different. My only point was the breadth of those rules like fitness to practice law gives a lot of ground for interpretation.
Jerry Hunter: Thank you.
Prof. Josh Blackman: [inaudible 46:30]
Nick Marr: Okay. We'll go to our next question now, then.
Caller 3: Hi. Yes, I think that one thing I've learned from this discussion is that I would not be uncomfortable with the Rule that would always be enforced by people like Mr. Weiner. I think the problem is that many people who support such Rules don't share his commitment to the First Amendment in the same degree.
I'm just thinking how people who've been critical of the Chinese government for the way it has handled coronavirus have been accused of inciting hatred against Asian-Americans. It's so easy to distort a debate by claiming harassment. For example, if you want to debate immigration, if one takes the position of favoring looser immigration policies, there's really no way that one is going to violate this Rule by saying, "immigration is wonderful and we should let everyone in." But anyone who would take the contrary position and say that immigration might create more cost than benefits, could be accused of denigrating people -- especially since most immigrants are coming from Latin America, of denigrating people of Latin American ancestry and would be put on notice that that might be unacceptable.
So the problem is that if one side is much more likely to run afoul of some aggressive prosecutors in the debate than the other side would, it would not only kill debate but it would pretty much distort the range of discourse and, in turn, really distort the debate and the results of the debate itself.
Prof. Josh Blackman: I'll take that one because I've made this point now for sometimes. This is a Rule that skews left, right? Speech that promotes progressive causes about diversity and inclusion, immigration, LGBT rights. Pick whatever category you want. Speech on one side of this debate will not be considered demeaning or offensive.
Speech on the other side will. This is a Rule that injects itself in various culture wars, perhaps, unintentionally but it does. If I criticize Affirmative Action, I'm in trouble [inaudible 48:49]. If I support restrictive immigration, you know, I'm in trouble. But if I favor DACA and whatever other policy you want sounds fine. If I oppose women in the military in combat, I'm in trouble but if I favor women in combat I'm fine. If I support a transgender high school athlete participating in competition, I'm fine. If oppose that, I'm in trouble.
So I think I can go up and down the list. In any issue in which there's a left/right divide -- if I favored a baker who doesn’t want to make the cake for a gay wedding, I'm in trouble. If I say that the baker should then, well, maybe I'm discriminating against faith and religion. I don't know, maybe, the Jack Phillips case goes both ways.
But on almost every issue, it skews left and I think that's an inevitable consequence of the fact that our society has a legal profession that's more liberal than, perhaps, the general populace. And that's one of the reasons why the trust us mentality doesn't quite work because they don't trust my colleagues in this profession.
I think there are people who try and cancel me on a fairly regular basis, if they could. Fortunately, I have tenure of office, so whatever.
Robert Weiner: I think you wouldn't be in trouble on either side of any of these debates. And my point is -- and I do not believe that you can rely on the goodwill of the regulators. But I do think you can rely on the law. And the Rule can always be made clearer, and I don't object to efforts to do that. But if it isn't, then the first time there's an as-applied challenge, the court is going to interpret it and make clear that it cannot be applied to make people be in trouble for taking the positions that Josh identified.
I'd be happy to argue that case. I think nine out of ten judges, if not better, would rule that that is not an appropriate application of the Rule. And once you have one, then you have clarity.
Nick Marr: Okay. Great. Let's go to our next in line's question.
Caller 4: Yes, Mr. Weiner, I'm very happy to hear that you would take on the case of the person charged under the Rule for making statements that some people found objectionable, say for because you have opposed Affirmative Action.
I can tell you that right now in Connecticut, the Bar is considering a proposal to adopt a Rule 8.4 and many, many of the comments filed in support of the Rules are by those saying we need a Rule that would permit people to bring these kinds of complaints where they feel threatened by people who make offensive comments in opposition, say, to Affirmative Action.
And one of the very prominent examples from Connecticut that gets cited all the time, is when an incident that Justice Sotomayor talked about in her autobiography. When she was a student at Yale, a recruiter from a Washington D.C. law firm asked her a question the gist of which was, don't you think that law firms, perhaps, ought to be ending our Affirmative Action policies because if we give preference to minority groups all that means is, perhaps, we'll end up hiring people who are less qualified and they won't end up getting, eventually, a partnership at the firm.
So it suggests to me that there are plenty of people ready and willing to bring complaints from Connecticut of the type you say would never get brought if this Rule is adopted and I'm wondering if you say that, perhaps, once you have a good court case those kind of complaints would stop. But wouldn't it be better, perhaps, to adopt a version of 8.4 that includes the very kinds of defenses that you are talking about?
Robert Weiner: Well, what I'll say, as you can tell I don't ally myself with people on the left who would curtail the First Amendment in order to quiet those whom they disagree with. I think it's a real problem on college campuses and law school campuses, in particular. And, I think, I don't trust people not to bring complaints in the first instance. I think there will be some people that will bring the complaints. I think very few of them, if any, will get very far and if they do, as I indicated, they have to get through lots and lots of different stages before they would ever even ripen into a case. And once they ripen into a case, I have some confidence that under the current state of the law, the Supreme Court has been strengthening First Amendment law year-by-year and that the current state of the law would not get very far.
That wouldn't be very pleasant for the first test case. But after that, I would hope that the law would be sufficiently clear. If there are things that can done to this Rule to make it clear, that kind of First Amendment persecution should not -- is not to be tolerated. I'm all for that. I'm not sure it's necessary. That doesn't mean I oppose it.
Prof. Josh Blackman: I don't think that I would want to be that test case but some poor soul would be -- actually, I think that I would want to be that test case. I would, actually, love because I have tenure in office; they can't fire me. Most lawyers can't risk their careers to litigate a test case. But, as they say, come at me. I'd be happy for them to try and bring Bar complaint against -- I mean, my state, Texas, doesn't have this Rule but, in theory, I would be more than happy to litigate this issue. It would actually be fun. Yeah.
Kim Colby: Nick, do we have any other questions?
Nick Marr: No questions left so, Kim I'll give it back to you. Maybe our panelists want to offer some closing remarks and then we'll close out this afternoon.
Kim Colby: Sounds great. I'd like to start by just thanking both Rob and Josh for spending this hour helping us all understand this Rule better and hearing both sides about it. And, then, Josh do you want to do a little -- whatever you want to say in closing and then Rob? And then I'll say goodbye.
Prof. Josh Blackman: Sure. You know, I think that the debate over 8.4 (g), I think, has gone on far too long. I feel like I've been wrangling with this issue for almost five years. Everything that's said has already been said. I think it would really behoove the ABA to, sort of, go back to the drawing board and give a different variant that states can offer. And, actually, include people like me on the committee that's drafting it. Like, you know, maybe Eugene Volokh or people that are actually inclined to disagree, right?
And I think you might actually have a product that can be adopted in the 50 states. But the ABA is, sort of, putting its head down and pushing forward. And when the state gets sued, they have to pay legal fees. That wastes time, they create division among the ranks in the membership. I think it would be much more beneficial to fine some Rule that appeals to a wide variety of members. And they keep pursuing the same Rule from 2017 -- almost five years -- that they'll be talking about forever. That's my closing remarks.
Robert Weiner: I'd say, in closing, that I think to a large degree, the Rule is a sheep in wolf's clothing. Could it be improved? Sure. Should the states draft on their own variations? Sure. Brandeis said that the states are laboratories of democracy, and he was right. But I don't believe that the Rule is an assault on the First Amendment. I think it should be interpreted in a way that is consonant with the privileges that we all enjoy and should enjoy.
Kim Colby: And, again, thank you both for an excellent discussion. And, Nick, I'll hand it back to you.
Nick Marr: Thanks, Kim. And thank you all. On behalf of The Federalist Society, I want to offer our thanks to our panelists, Josh and Rob, and Kim for moderating for the benefit of your valuable time and expertise this afternoon.
Of course, to our audience for calling in, your great questions. Just a reminder, be checking your email and our website for announcements about upcoming Teleforum calls like this one and Zoom events. We've got some Supreme Court ruling coverage this week and next and some different panels, so be sure to check those out and I hope to see you there.
Until next time, thank you all for joining us this afternoon. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.