Ethics CLE Teleforum 2018: New Issue in Legal Ethics, ABA Model Rule 8.4(g)

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 Thursday, October 18, 2018 during a live teleforum conference call held exclusively for Federalist Society members. Please note that while this call originally provided CLE, the credit is no longer available.

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. The main topic of today's call is the new ABA Model Rule 8.4(g). This teleforum is also our 2018 Ethics CLE Teleforum. My name is Micah Wallen, and I'm 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 an Associate Professor of Law at the South Texas College of Law in Houston. Without further ado, Professor, the floor is yours.

 

Prof. Josh Blackman:  Thank you so much. It's a pleasure to talk to you all today. My format is I will give remarks for about 45 minutes and then we'll have the last 15 minutes or so open for questions. And please if you have questions, jot them down and we'll get to them later.

 

      Our topic today is ABA Model Rule of Professional Conduct 8.4(g). The American Bar Association approved it in August of 2016. That's roughly two years ago. Under this proposed rule, it is misconduct for an attorney to, quote, "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 socio-economic status in conduct related to the practice of law." Comment [4], the rule explains, that "conduct relates to 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 here comes the important part, "participating in bar association, business, or social activities in connection with the practice of law." The Model Rule is just that—a model that does not apply in any jurisdiction. Now the project goes to the states, as state supreme courts consider whether to adopt Rule 8.4(g).

 

      In 2017, I wrote an article on this topic in the Georgetown Journal of Legal Ethics, in which I urged states to pause before adopting Rule 8.4(g) in light of its First Amendment implication. And since then, I've followed the number of comments in state supreme courts urging states to reject adoption of this rule. So far, at least nine states have rejected the rule—Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, and Tennessee. The Texas Attorney General, from my home state, Ken Paxton went a step further, and he said that the Model Rule 8.4(g) is a violation of the First Amendment. A couple of other states have reached similar conclusions. Few states still have open comment periods—New Hampshire, Pennsylvania, and Utah, but they haven't made a decision yet. Based on my count, only one state adopted the rule which is Vermont, and they did it really below the radar. They made a small notice of the proposed rule on the public [inaudible 3:479] I didn’t even see, and a lot of people who follow this didn't see either.

 

      So to repeat, at the present moment only one state, Vermont, has adopted the rule. But the process is still not over. And other states are apparently considering the rule. My talk today has three parts. First, I want to focus on how Rule 8.4(g) extends a disciplinary committee's jurisdiction to, quote, "conduct related to the practice of law" for speech that could be deemed, quote, "harassment." Lectures given at CLE events, or dinnertime conversation at a bar association function, or perhaps even a firm Twitter account would now be subject to discipline if the speaker reasonably knows or should know that someone might find it derogatory. This threat of sanction, I think, will inevitably chill speech on matters of public concern. Neither the rule nor its comments express any awareness of this novel intrusion into the private spheres of an attorney's professional life.

 

      Second, I will compare the operation of Rule 8.4(g) with previous model ABA rules, as well as state adopted anti-bias regimes. Rule 8.4(g) is largely unprecedented as it extends a disciplinary committee's jurisdiction to conduct merely "related to the practice of law" with only the most tenuous connection to representation of clients, a lawyer's fitness, or the administration of justice.

 

      Third, I want to discuss Rule 8.4(g)'s chilling effects. Though courts have generally upheld the regulation of attorney speech in the context of practice of law. So the third part of my talk focuses on the chilling effects of Model Rule 8.4(g). Courts have generally upheld the regulation of attorney speech in the context of the practice of law. As expression becomes more attenuated from the bar association's traditional purposes, the state interest becomes far less compelling. In this sense, past precedents of holding disciplinary actions for attorney speech are largely unhelpful. Rule 8.4(g) sweeps in vast amounts of speech on matters of public concern, and imposes, I think, an unlawful form of viewpoint discrimination from early-on conservative speech. At bottom, the defenders of this model rule can only urge us to trust the disciplinary committees. The First Amendment demands much more.

 

      So the first part of my talk looks at Rule 8.4(g), and how it was designed to eradicate verbal harassment. Now, let me say at the outset that the drafters of Rule 8.4(g) were well-intentioned. I think they were very well intentioned. They were trying to eradicate discrimination and harassment of the sexual nature in the legal profession. I think that was a very well-intentioned function. Where I think they went awry was by not having enough safeguards to limit the scope of that. And I can give some evidence of this.

 

      In February 2016, there was a hearing held about the Model Rule. Several witnesses expressed their concerns about sexual harassment that occurs in the practice of law, and in particular after-hour social functions. For example, one New York lawyer said that no one wants to interrupt the private aspects of a lawyer's life. But she stressed that she was concerned that so much sexual harassment and bullying against women takes place on the way home from an event or in a limo traveling on the way back from a long day of litigation. She said that merely describing these as social events as opposed to professional events is not accurate. And she expressed concern that a lot of bad activity goes on at social events and those misconducts should be punished by the bar.

 

      Another member of the ABA offered anecdotes of sexual harassment at a Christmas party, perhaps where a male partner asks a female associate to dinner after a deposition followed by an invitation to "come up to my room." And she asks rhetorically, "Is that in relation to the practice of law?" She suggested that the Rule should govern conduct that's more than simply related to the technical practice of law. And the ABA, I think, adopted this understanding. And they cited substantial anecdotal evidence provided to the Committee of sexual harassment at activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm.

 

      So read against this history, Rule 8.4(g) and comment [4] were crafted to allow disciplinary boards to punish lawyers who engage in sexual harassment as social activities that are not strictly connected with attorney-client relationship or the operation of a law practice. Yet, I think these motivations are well intentioned. But they went much further than that. They do more than punish sexual harassment, which is a very well unestablished body of law.

 

      As a threshold matter, the Rule does not provide -- I'm sorry, the rule does not prohibit only sexual harassment but it also extends to a far broader category of just harassment. Comment [3] defines harassment to include, quote, "derogatory or demeaning verbal…conduct." If you look at Black's Law Dictionary, the word demeaning means, quote, "exhibiting less respect for a person or a group of people than they deserve, or causing to feel embarrassed, ashamed, or scorned." If you look up derogatory in the Oxford Dictionary, it's defined as "showing a critical or disrespectful attitude." If you have a code that prohibits speech that fits any of these definitions—disrespectful, critical, scorn—this is speech that is entirely protected by the First Amendment. It doesn’t fit into any sort of categorical exception, such as "fighting words" or "incitement." It's fairly well-established in our legal system that there's no harassment exception to the First Amendment. There's some case law suggesting that sexual harassment is treated differently, and I won't engage that here. But there's no general harassment exception to the First Amendment and that's important.

 

      The courts have generally permitted the imposition of damages for verbal—that is non-physical—sexual harassment in the employment context so long as the speech was, quote, "severe or pervasive" that it creates a hostile or "offensive work environment." This is a very high standard, and it can't be done perhaps on a single event, generally speaking. Comment [3] to the rule explains that the "substantive law of antidiscrimination…may guide application of Rule 8.4(g)." But it doesn't follow it exactly, and there's no requirement of severity or pervasiveness. A single harassing comment under this Rule could result in attorney discipline. Further, the Rule extends beyond the work environment. Rule 8.4(g) and comment [4] provide a near-infinite number of fora where speech can give rise to discipline. And I'll give a couple of examples.

 

      For example, lectures and debates hosted by bar associations that offer Continuing Legal Education credits are necessarily held "in connection with the practice of law." Indeed, this very teleforum I'm speaking to right now, I think, is in connection with the practice of law; you need the CLE credit to keep your license. So I think at this point, were I in a state with 8.4(g), I would be subject to this rule. A lawyer is required to take these classes; I think they're mandatory. Now, it's not difficult to imagine how certain topics could reasonably be found by attendees to be derogatory or demeaning on the basis of one of the 11 protected classes in 8.4(g). Consider 11 examples. I'll give you 11.

 

      So first, race. A speaker discusses "mismatch theory," and contends that race-based affirmative action should be banned because it hurts minority students by placing them in an education setting where they have a lower chance of success. This is a fairly robust discussion in the affirmative action debate, but this could be deemed derogatory or demeaning and give rise to discipline.

 

      Second, consider gender. A speaker argues that women should be not eligible for combating duty in military and should continue to be excluded from selective service requirements. Again, this is a matter of public concern on which people disagree, but this could be derogatory on the basis of gender.

 

      Three, let's consider religion. A speaker states that the owners of a for-profit corporation request religious exemption from the contraceptive mandate are bigoted and misogynistic. This actually goes the other way if the religious business owner might feel demeaned by these sort of comments.

 

      Fourth, national origin. A speaker contends the plenary power doctrine in immigration law permits the government to exclude aliens from certain countries that are deemed dangerous. This could be deemed demeaning to people of certain nationalities; again, a matter of public concern that the Supreme Court passed on only a few months ago.

 

      So far I've given four examples of race, gender, religion, and national origin where certain statements made could be offensive and demeaning, or that could give rise to discipline. I'll give a couple more.

     

      Fifth, we have ethnicity. For example, a speaker states that Korematsu was correctly decided and that at certain times of war, the president should be able to exclude individuals based on their ethnicity. Again, controversial – demeaning for sure.

 

      Sixth, disability. A speaker explains that people with mental handicaps should be eligible for the death penalty.

 

      Seven, age. A speaker argues that minors convicted to murder can constitutionally be sentenced to life without parole.

 

      Eight, sexual orientation. A speaker contends Obergefell v. Hodges, the same-sex marriage case, was incorrectly decided, and that the Fourteenth Amendment does not prohibit the classification on the basis of sexual orientation. Obergefell describes a case on which the country was fairly divided. This would be a topic that many people might find demeaning, even to say it might give rise to disciplinary action.

 

      Ninth, you have gender identity. A speaker states that Title IX cannot be read to prohibit discrimination on the basis of gender identity, and a student should be assigned to bathrooms based on their biological sex. Gender identity is one of the prohibited classes.

 

      Ten, marital status. A speaker remarks over dinner that unmarried attorneys are better contended for law firms because they'll be able to dedicate more time to the practice. I'm sure people have heard this certain message quite a lot. That can give rise to disciplinary action.

 

      Eleventh is the oddest of the bunch, which is socioeconomic status – basically how much money a person has. A speaker posits that low-income individuals who receive public assistance should be subject to mandatory drug testing.

 

      Now, all these statements were chosen, all eleven, to be provocative and made them quite provocative on purpose. The reason why I made them provocative on purpose is that the speaker, quote, "reasonably should know" that someone at the event could find their remarks disparaging towards one of these eleven groups. For example, a person whose marriage is legalized by Obergefell or who gained access to the bathroom of choice under the interpretation of Title XI, or who immigrated from a country subject to a travel ban, or who's admitted to college under an affirmative action plan could plausibly feel demeaned by such arguments. Lest you think that these charges are implausible, consider the reaction to Justice Scalia's discussion of mismatch theory during oral argument in Fisher v. University of Texas at Austin.

 

      A CLE lecture on any of these eleven topics would be entirely protected by the First Amendment, yet could still give rise to liability under Rule 8.4(g). And this is not just an instance where CLE lectures are covered. If a firm has a social media presence on Twitter, if a lawyer has perhaps a Facebook account which he uses partially for business, maybe for not, his even posts online could be roped into this. These eleven examples should reveal another fairly obvious result: speech on the right side of the political spectrum would disproportionally give rise to liability. I can't make this point too bluntly. There is a viewpoint discrimination, and I'll come back to it later in my talk.  

 

      Comment [4] provides an even greater number of fora that could be deemed connected to the practice of law. For example, a dinner hosted by a bar association, or perhaps by The Federalist Society, or the NAACP are social activities with a connection to the practice of law. If any of these eleven topics were discussed at the dinner table at such events, an attendee who felt demeaned could file a bar complaint. Yes, a bar complaint against you for dinner table conversation to this nature.

 

      Additionally, in my profession – law professor – I think my lectures are related to the practice of law. If a student feels demeaned by one of my lectures, rather than going to the Associate Dean to complain, they can go to the state bar and file a complaint against me. I don't think those are completely prosecuted, but this is something that professors should be quite aware of in any jurisdiction that adopts this rule. I think this rule can even apply to an attorney speaking at a Career Day at a child's Catholic school about the role of faith in the practice of law. Now, whether or not these complaints lead to any disciplinary action, there's a threat of liability that chills speech at a CLE debate, a dinner, or in the classroom.

 

      Now, this wasn't hard to figure out, right? These problems were obvious. But the most striking aspect of the adoption of Rule 8.4(g) is how little awareness the ABA expressed about the boundless scope of prohibited speech. Neither the rules nor the comments even reference the First Amendment. Now, charitably maybe these concerns were not on the minds of the drafters as a focus on substantial anecdotal information about sexual harassment. But there's reasons to suspect there was an effort to prohibit this sort of speech.

 

      An earlier draft of Comment [3] from December 2015 said, quote, the rule "does not apply to conduct unrelated to the practice of law or conduct protected by the First Amendment." And there was a report that said, "A lawyer retains a private sphere of personal opinion, creative information, religious expression, and political speech that's protected by the First Amendment and not subject to the rule." This was great language. I liked it. But they cut it. They actually deleted from the rule the only reference to the First Amendment, and I can only think this change was deliberate. In fact, several members of the Committee who drafted the rule said that this might make it too hard to prosecute misconduct, and that carving out exceptions would make it more difficult to go after harassment. So I think that the ABA was comfortable making this rule broader than it had to be. But a consequence of this is now we have this regrettable omission where we have this proposed rule that, I think, limits a wide range of attorney speech and the rule makes no reference to why free speech ought to be protected.

 

      Now, I'll move onto the second part of my talk. The scope of Rule 8.4(g) is largely unprecedented in how far it goes beyond regulating conduct related to the practice of law, conduct related to a lawyer's fitness for practice, or conduct prejudicial to the administration of justice. This second part of my talk will analyze how Model Rules 8.4 (a) through (f), which are old, operated before the amendment and discuss how states have narrowly tailored their anti-bias disciplinary provision. The point I'd like to convey in the second part is states can regulate bias and improper conduct in the legal profession but do so in a narrowly tailored fashion that doesn't raise the First Amendment problems that does 8.4 (g).

 

      So the first seven sections of the Model Rules of Professional Conduct govern the responsibilities, duties, and restrictions in attorneys when they're practice law or representing clients. If you have your Model Rules handy you can flip through them along with me. 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 proscribe an attorney's responsibilities as an advocate before tribunals and other fora. 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 through advertising to and solicitation of clients. If an attorney violates any of these rules, he or she is in violation of Rule 8.4(a).

 

      Now, the remainder of Rule 8.4 governs conduct that is increasingly more attenuated from the actual practice of law. For example, Rule 8.4(b) states that it's misconduct to, quote, "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." 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 more so than violent crimes warranted this disapprobation.

 

      Rule 8.4(c) provides that it is misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Thus, even if an action's not criminal so long as it involves dishonesty, it warrants disciplinary action. So far so good. Indeed, I think Rule 8.4(c) swallows up virtually all the conduct that satisfies 8.4(b), and then some. These supervisions are to articulate a standard that a lawyer's actions, even when unconnected to 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." Perhaps the most famous example of this rule involves President Clinton. Former-President Clinton was suspended from the practice of law because he gave knowingly evasive and misleading discovery responses concerning his relationship with Ms. Lewinsky. This conduct, the court found, was prejudicial to the administration of justice, even though Mr. Clinton was not engaged in the practice of law, he was still bound by this rule. He also lied under oath, which violated Rule 8.4(c).

 

      Rule 8.4(e) prohibits lawyers from "state[ing] or imply[ing] an ability to influence…a government official or agency."

 

      We have Rule 8.4(f) which prohibits "knowingly assist[ing] a judge or judicial officer in…a violation of applicable rules."

 

      Okay, so far so good. All of the bar's rules have a pretty good connection with legal practice or a court or something with the administration of justice. I say they form three heads of conduct. First, conduct during the practice of law or representing a client. Second, conduct that reflects on a lawyer's fitness to practice law. And third, conduct prejudicing the administration of justice. Model Rule 8.4(g) is different. It covers conduct that's just related to the practice of law, including speech at bar associations and social activities. This rule represents an unprecedented expansion of the disciplinary committee's jurisdiction over the private lives and speech of attorneys.

 

      And this was known to the people who were drafting the rule, right? They recognized it if you look through their proceedings. Even the ABA acknowledged that the Model Rule 8.4(g) is broader than the current provisions, but they insisted that the change is necessary. The ABA's resolution said, quote, "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 officer of the courts, the ABA said lawyers are, quote, "public citizens with a special responsibility for the administration of justice." You're public citizens.

 

      This notion of an attorney as a public citizen is derived from Preamble [6] of the Model Rules, right? Critically, the Preamble discusses an attorney's interaction as very private with clients and the like. It's not designed to make all aspects of an attorney's life governed by the bar, and what the model rule does is shift towards that norm. I think it's an important goal to make sure that all attorneys behave in a dignified fashion at all times, but the bar only has a certain jurisdiction and in addition to the constitutional concerns at the associate bar.

 

      Now, we have in nearly 36 jurisdictions anti-bias provisions. And I think most of these are narrowly tailored enough to survive constitutional scrutiny. Why? With a few exceptions, these rules only govern conduct within the three heads of conduct reached by Rule 8.4(a) through (f), right? You have rules that prohibit bias during the representation of a client during the practice of law. This rule exists in 15 states and 10 states in their comments. Second, you have a far broader standard that regulates bias that implicates a lawyer's fitness to practice law. Only two states have adopted this. And third, a handful of states have adopted a nebulous standard that prohibits bias or prejudice to the administration of justice. Now, that's perhaps the most nebulous one but all of them have a fairly close connection with the practice of law. Rule 8.4(g) goes much beyond this. It's only conduct related to the practice of law.

 

      Now, I want to turn to the third part of my presentation, which focused on 8.4(g) and the First Amendment. When the ABA released their report, they gave the most cursory free speech analysis. Indeed, as I mentioned earlier, they deleted any reference to the First Amendment and in the comment to the rule, which I think was a mistake. So the third part of my talk will analyze those vague standard's chilling effects on speech, how the rule sweeps in the range of constitutionally protected speech, and how the comments establish what I think is an invalid form of viewpoint discrimination.

 

      We start our analysis with constitutional scrutiny. And we know that with constitutional scrutiny, you have to balance the means and the ends. As the government interest becomes more compelling, the rule's tailoring needs to be -- I'm sorry, the rule's tailoring need not be as narrow. Conversely, when the government interest becomes less compelling, narrow tailoring becomes essential. Governing professional conduct is a compelling interest within a bar association's core jurisdiction. But here, the government's authority is at its apex and narrow tailoring is not as critical. However, when you have conduct that's merely related to the practice of law, which includes speech at social events, the government's interest becomes far less compelling, as 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 becomes 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 constitutionally support a punishment for an incident at a deposition but not during a bar association dinner or CLE lecture. Context matters for the First Amendment.

 

      Because no jurisdiction has ever attempted to enforce speech code over social activities merely connected with the practice of law, there are no precedents to turn to in order to assess such a regime's constitutionality. While discrimination and sexual harassment do have established bodies of case law that can be referred to, longstanding ethics rules do not penalize harassment by itself in the context of private speech at social functions. In such fora, the government's interest is at its nadir, and tailoring must be extremely narrow to survive judicial scrutiny.

 

      Even before the Rule 8.4(g) was adopted, attorneys often found themselves in the midst of that reoccurring inquiry into when lawyer conduct has sufficient nexus with fitness to practice law that it ought to be a basis for law discipline, even when it's marginal to the direct representation of clients. Now, discipline can be imposed for conduct merely related to the practice of law and totally unrelated to the direct representation of any 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 with only the most dubious connection with the practice of law. Though these laws may survive a facial challenge, they're quite vulnerable to individual challenges. If a jurisdiction adopts Rule 8.4(g), some unlucky attorney can become a test case with his or her livelihood on the line. This is not a mere academic exercise. States must be very careful that adopting this novel new approach to discipline that may end up censoring speech on matters of public concern, only to have those actions reversed by the courts.

 

      Let's start with the broad sweep of Rule 8.4(g). Again, the comments provide several examples of the various fora where the regime would apply. It mentions social activities, bar association functions. However, the long-deliberated rule does not offer examples of the type of speech that can be deemed harassment. What is harassment? I would say that the bar lacks a sufficiently compelling interest to censor an attorney who makes remarks deemed demeaning at a CLE lecture, or makes a comment deemed derogatory at a dinner table, right? These are the sorts of problems that can be resolved by refusing to re-invite offending speakers, social cues, not by threatening to suspend or revoke a lawyer's license. Here, the nexus 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's separate from the practice of law or representing a client and does not reflect on a lawyer's fitness or prejudice the administration of justice.

 

      Finally, there's a separation of powers element to this analysis. It's not surprising that disciplinary actions fall into these three narrow heads. Why? State bar associations are charged to supervise the legal profession. Disciplinary committees do not balance discretion over all aspects of an attorney's life. Like all administrative agencies, bar associations only have the authority that the relevant state legislature or court delegates to them. All right? When a bar attempts to regulate conduct that is beyond its jurisdiction, its action is ultra vires as a matter of state administrative law. So beyond the First Amendment implications in Rule 8.4(g), state courts should consider whether the bar association even has the statutory authority to assert jurisdiction over speech that is increasingly attenuated from the practice of law. As a matter of separation of powers under state constitutional law, I think Rule 8.4(g) may be impermissible.

 

      Next, I want to talk about viewpoint discrimination. Under the First Amendment, the government can't pick winners or losers in a debate. It can't choose one viewpoint over the other; that is unconstitutional. Comment [4] to Rule 8.4(g) says, quote, "Lawyers may engage in conduct undertaken to promote diversity and inclusion." Again, they can take conduct to promote diversity and inclusion without violating the rules, for example, by implementing initiatives in their recruiting, hiring, and retaining and advancing diverse employees. This was a provision that was well-intended, but it explicitly sanctions one perspective on the divisive issue of affirmative action. Those who endorse affirmative action are excused from misconduct. Those who take the opposite perspective can be punished. This is viewpoint discrimination and blatantly so.

 

      Consider a debate hosted by a bar association about affirmative action. One speaker promotes racial preferences as a means to advance diversity. His speech is entirely protected under Rule 8.4(g). Another speaker critiques racial preferences in light of mismatch theory. His speech is not protected under 8.4(g). This is a blatant instance of preferring one perspective over another. Again, that the ABA sought to include those provisions suggests that there was a concern that bar complaints could be filed over speech about affirmative action, or the diversity measures, that some could find demeaning. But not for other types of speech.

 

      Beyond speech about diversity, Rule 8.4(g) will disproportionally affect speech on the right side of the spectrum, if you're very blatant about this. Speech supporting a right to same-sex marriage will not be considered derogatory; speech critiquing it will. Speech supporting an interpretation of Title IX that prevents bathroom assignments based on gender identity will not be considered demeaning; speech critiquing it will. Speech opposing immigration policy that excludes people based on nationality will not be considered discriminatory; speech endorsing it will. A range of theories could be silenced under the threat of an unconstitutionally vague standard of harassment.

 

      Experiences with political correctness and speech codes on college campuses provide a roadmap of the sorts of speech that complaints filed on Rule 8.4(g) would likely target. Very recently we saw students at Harvard University filing Title IX complaints against Judge Kavanaugh, and they claimed there really wasn’t much of a basis for it but they were going to do it anyway. We could say the same with bar complaints, and if you think that these won't be abused, pay attention to what's going on.

 

      There was a recent decision in the Supreme Court that I think throws even greater doubt onto 8.4(g)'s constitutionality. The case was decided about four or five months ago called National Institute of Family and Life Advocates v. the Becerra. It's a case from California. NIFLA, as the case was called, considered whether California could require certain medical facilities to display messages concerning the availability of public funding for abortions. In recent years, several circuit courts of appeals have strictly regulated speech associated with the legal profession, that professional speech when it involves personalized services and requires professional license from the state.

 

      But the Supreme Court in an opinion by Justice Thomas took a different perspective. This regime gives the states, quote, "unfettered power to reduce a group's First Amendment rights by simply imposing a licensing requirement." The Court expressed caution with applying [inaudible 37:50] scrutiny to so-called professional speech as that standard would cover a wide array of individuals. And Justice Thomas mentioned doctors, lawyers, nurses, physical therapists, truck drivers, bar tenders, barbers, and many others. Again, he stressed lawyers. Justice Thomas wrote that the government lacks unfettered power to regulate the speech of lawyers simply because they provide personalized services after receiving a professional license. The Court identifies two narrow exceptions to this rule, neither which turn in effect the professionals for speaking.

 

      In the first circumstance, the Court has applied more deferential review to some laws that require professionals to disclose factual, non-controversial information in their commercial speech. This is the Zauderer case from 1985. Now, this first condition is not relevant to 8.4(g). Speech uttered in conduct related to the practice of law does not require professionals to disclose factual, non-controversial information.

 

      Second, Justice Thomas noted that states may regulate professional conduct even though the conduct indecently involves speech. This standard is directly relevant to 8.4(g). The state can regulate professional conduct that incidentally involves speech. But it cannot regulate speech that incidentally involves professional conduct. The proposed amendment by its own term straddles that line. It applies to both conduct in the practice of law and words in the practice of law. This is not a merely incidental regulation; this is the entire kit and caboodle. Given that Rule 8.4(g) is subject to strict scrutiny, members of the bar will be faced with a meritoriously vague standard, especially what is conduct related to the practice of law? You're lying in a case-by-case regime is a very sort of ad hoc standard that cannot meet strict scrutiny under the First Amendment. In light of NIFLA, a content-based restriction applies to conduct related to the practice of law cannot satisfy strict scrutiny.

 

      Now, let me end where perhaps I should've began. In 2016 at the National Lawyer's Convention in D.C., there was a debate about this rule. Professor Eugene Volokh of UCLA debated Professor Deborah Rhode from Stanford, and Judge Elrod from the Fifth Circuit moderated that debate. Eugene and I largely agree on 8.4(g). And Professor Volokh worried that you'd have complaints filed against a speaker who criticizes the Obergefell decision because it might be demeaning to people on the basis of sexual orientation.

 

      Professor Rhode wasn't concerned with this potential for abuse. From her experiences, she said disciplinary committees "don't have resources to go after people who steal from their clients' trust fund accounts." She found "wildly out of touch with reality" the "notion that they're going to start policing social conferences and go after people who make claims about their own views about" religion or sexual orientation. Rhode added that "many people who are in the bar disciplinary agencies care a lot about First Amendment values, and bar associations don’t want to set up their members to go down these routes." She said an aggrieved party could "file a complaint," but "we can say that just about anything in this country, right?" She said complaints will go nowhere. She added, "We as a profession have a capacity to deal with occasional abuses." She concluded her remarks, "We're a profession that knows better than that, I would hope."

 

      A couple minutes later, Judge Elrod asked whether Professor Rhode's position "would depend on a trust…that the organizations would not be going after people that they don’t like, such as…conservatives." She asked, "We would just have to trust them?" If you were there, almost everyone started laughing in the room when Professor Rhode said we have to trust them. I don't think a lot of people trust the bars to administer these sorts of rules in a neutral fashion. And whether or not we trust them, the First Amendment demands much, much more than that.

 

      Principles of free speech and the livelihood of attorneys should not be left to the discretion of bar disciplinary committees. In its current form, Rule 8.4(g) should not be adopted. And, again, at least nine states have rejected the rule to date—Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, and Tennessee. Again, the Texas Attorney General, Ken Paxton, put out an opinion saying it's unconstitutional. Only Vermont has adopted it. California adopted a rule that's somewhat similar but I think quite different in a number of regards. Indeed, it actually began before 8.4(g) came around, so I don't consider it an adoption of 8.4(g). But no state, except for Vermont, has actually gone forward.

 

      But this process is ongoing, and maybe your state is considering it. If it is, I would consider telling you to write a letter to the bar or to the state Supreme Court or wherever the agency is raising some of the concerns that I flagged here. If you do that and the people in your state courts recognize the problems, then maybe they won't adopt it. Maybe they can adopt a more narrowly tailored bias provision that can go after problems but not sensor speech. In the end, I think state courts should pause before adopting this rule and think carefully about the primacy of our first freedom. I will be happy to answer any questions.

 

Micah Wallen:  Thank you, Professor. We'll now go to our first question.

 

Dennis Kirk:  Okay. This is Dennis Kirk in Washington D.C. Professor, do they really think that freedom of speech can be so easily regulated that the ABA, who's gone terribly one-sided in politics, should be trusted with it?

 

Prof. Josh Blackman:  Thank you for the question. If you read through the proceedings of these deliberations, there were some lawyers in the ABA who did raise free speech concerns. But these concerns were largely dismissed. My sense is that the ABA is more concerned with rooting out harassment [and] discrimination as that incidentally makes some people not say certain things. I don't think they mind very much. But, again, with the First Amendment it's not the role of individuals to put the justification of why it gets engaged in the speech. It's the burden on the government to why it gets to censor it. And I don't think they've had nearly enough of a compelling interest to censor it, so which is why so far almost every state that's considered it has so far rejected the rule.

 

Dennis Kirk:  Thank you, sir.

 

Micah Wallen:  And let's go to our next question.

 

Dennis Saffran:  Professor, Dennis Saffran from New York. Has there been a challenge in Vermont? And do you happen to know the status of the rule in New York?

 

Prof. Josh Blackman:  Thank you. I don't know that there's actually been any discipline brought against the rule in Vermont. The rule would probably survive a facial challenge. --

 

Dennis Saffran:  Right.

 

Prof. Josh Blackman:  -- So I don't think it's a good idea. I think the rule on its face would probably broaden up. But you'd have to bring an as-applied challenge. And I don't know that there's actually been any enforcement action.

 

      As far as -- New York has not adopted the rule. I don't know the status of that ruling. I'll have to look into that later.

 

Micah Wallen:  All righty. Next caller.

 

Caller 3:  I thought you did a good job of focusing on cases where there's no connection between the attorney's conduct or speech and his practice of law. I'm interested in your views on issues that perhaps would be more directly related to the practice of law. For example, if a client came to a lawyer and said, "I am gay. I'd like you to represent me." And the lawyer said, "Well, I'm happy to represent you on all issues except for ones where you are pushing for increased gay marriage rights because, for religious reasons, don’t handle those types of cases." Would that sort of refusal to take on cases be actionable either on this rule or perhaps some other existing rule?

 

Prof. Josh Blackman:  Well, my understanding of the 8.4(g), and I can check the comments in a minute, is it doesn't apply to a decision to accept a client. I think they still have an exception that would -- with respect to taking on a client that you're not bound by this. So I think you can still have a position to decline representation.

 

      And to answer the question from a moment ago, as far as I can tell from the CLS sheet, New York has not adopted 8.4(g). They have a pre-existing analog, and they're studying it at the moment. So I don't know that they've adopted it. They haven't adopted it yet, but they're still studying the rule.

 

Micah Wallen:  Okay. We'll go now to the next caller.

 

Brooks Harlow:  This is Brooks Harlow out in Tyson's Corner, but I'm a member of Washington and Oregon bars, which I think will look very kindly on this proposed rule. It occurs to me that a state bar that attempts to enforce this rule arguably is committing a § 1983 violation – deprivation of rights or property under color of state law. And that is something that I'm not sure you ever want to bring that lawsuit, but the threat of that might help discourage those liberal-leaning bars from adopting or enforcing such a rule because it could cost them.

 

Prof. Josh Blackman:  You have to recall that when the state brings disciplinary action, it is a state actor. And I do think that they would be liable not only to challenge the enforcement action, but to also bring a collateral § 1983 action seeing that the entire rule is problematic. So, yeah, I think we will -- if any state brings this, you will see a lot of litigation. This is why I think states are turning it away. Thank you so much for the question.

 

Micah Wallen:  And we have some more questions lined up.

 

Warren Belmar:  This is Warren Belmar in Palm Beach, Florida. I think you made an unbelievably wonderful presentation and summary of the issues. And I hope that your speech is going to be reduced to writing and published either in a Federalist Society publication or a law review.

 

      The chilling effect that this rule has in speech has not really been appreciated by too many members of the bar. And you mentioned a number of examples where people not realizing they might be subject to the rule might find themselves being reported by others and subjected to the proceeding; that they may win, but nevertheless, suffer the problems that would flow from that during the pendency of a proceeding that subsequently gets dismissed.

 

      Question: judges are lawyers too. If a judge is participating in a CLE panel next to an attorney and they both say the same thing and someone in the audience finds it offensive for whatever reason – any one of your eleven examples – would the individual be able to report to the bar association the misconduct of a federal or state judge?

 

Prof. Josh Blackman:  So first off, the speech I gave today is based on an article I wrote in the Georgetown Journal of Legal Ethics, and it was published last year. And I'm sure The Federalist Society can send a link out to the people who attended. You can download it and read it. All the footnotes are there; all the sources are there. --

 

Warren Belmar:  Well, I hope they circulate the citation to it so we can all find it.

 

Prof. Josh Blackman:  I'll give the citation within the next question. But there's a second part to your question. Judges are already subject to a fairly stringent speech code, and there's a robust body of case law on regulations on judge's speech. It often comes up with campaign finance with Republican Party Minnesota v. White case. So judges' speech is already restricted in far more context. They can't make political statements and the like, depending on the state. But what this rule is actually trying to do – Rule 8.4 – is bring attorneys in a similar space of judges. And actually, I spoke to a group of judges in Pennsylvania about this rule, and a couple of judges said, "What's the big deal? Judges are already subject to this rule, why can't other lawyers be subject to it?" And my response is lawyers have an obligation to speak their conscious. They're not supposed to be neutral. They have a position. They have an opinion. But among a lot of people within the ABA, they think, well, all lawyers should be these public citizens. They should be members of the bar through and through. I think that's a mistake. And, again, if someone does try and bring this challenge, I think they will prevail on -- and there'll be, maybe even a Supreme Court case as well.

 

Micah Wallen:  We'll now go to the next question.

 

Charlie Kaplan:  Good afternoon. This is Charlie Kaplan from New York. This presentation hits pretty close to home. I represent management and employment and labor law, and number of years ago in a deposition, I asked a plaintiff in an employment discrimination case whether he had a criminal record. And the plaintiff's counsel objected strenuously saying that my question was racist and I wouldn't have asked that if the plaintiff weren't Hispanic. I was wondering what your thought would be as to the application of this kind of rule to that or in general, particularly in the area of employment discrimination or Title IX, where those of us who are representing employers or representing others, who are taking a position against someone falsely claiming employment discrimination, just by advocacy, I could see how our arguments are viewed as somehow being discriminatory.

 

Prof. Josh Blackman:  Yeah, thank you for the question. I think the key word is if your conduct is viewed as demeaning on some sort of legal proceeding, that by itself could give rise to disciplinary action. Now, most states already have anti-bias provisions in the practice of law. I think taking a deposition would probably be viewed as within the practice of law. I think we'd all agree on that much. But what's different is that they generally require some form of severe, pervasive harassment, not a one-off statement that can be demeaning. And that's where I think 8.4(g) takes an additional step towards not only restricting an attorney's speech, but perhaps even restricting their ability to advocate and be an effective attorney. The comments sort of clue that, but your question I think gives rise to a case where you may want to ask a question that can be demeaning and instead of getting a deposition and testimony, you get a bar complaint filed.

 

Charlie Kaplan:  Thank you.

 

Prof. Josh Blackman:  Thank you.

 

Micah Wallen:  Let's go to the next question.

 

Josh Montanini (sp):  Hello. This is Josh Montanini in King of Prussia, Pennsylvania. Thank you very much for your talk. I was wondering if you could explain a little more your belief that this was well intentioned versus something that was more pre-textual, given that the way the rule is drafted seems to be so broad and what was described as the well intentions or the good intentions was just a few isolated kind of instances. Thank you.

 

Prof. Josh Blackman:  Thank you for the question. Maybe I'm much of an optimist. I'm on the sunny side of the map, as Justice Kavanaugh would say. But I generally assume people act in good faith. And I think there were documented instances where particularly female associates said various firms were being harassed sexually and subjected to getting improper conduct. So that's why I say there is a well-intention here. The problem is that they were concerned that if they wrote the rule in a narrowly tailored fashion, perhaps an off-hand sexist joke could perhaps escape it – think, "Oh, I was just joking at dinner; it wasn't meant to be harassing."

 

      So they wrote this rule in a broad way to police what they viewed as conduct that simply should not happen – an off-hand joke maybe of a sexual nature. But the problem is they made it so broad that it sweeps in a lot of speech that ought to be protected. And I've debated this topic a couple of times at various law schools and rarely the answer is "trust us." You know, trust the bar; they're not going to enforce this in a fashion to go after protected speech. On that side, I'm not on the sunny side of the mountain. I'm very skeptical that they will enforce this in an even-handed manner. I think it will disproportionately fall on conservative speech by the very nature of the types of viewpoints they prefer.

 

Micah Wallen:  And before we go to our next question, I just wanted to point out for the audience, I believe it was pointed out by a caller a few callers ago that we do have in the Dropbox for the CLE materials, we have Professor Blackman's article entitled, "Reply: a Pause for State Courts Considering Model Rule 8.4(g)." So if you're interested in seeing the full article, it is located there.

 

      We do have another question lined up, so we will proceed onward.

 

Jonathan Dimmer (sp):  Yes, this is Jonathan Dimmer in Washington D.C. I'm looking at Professor Blackman's article in the Georgetown Journal of Legal Ethics, and it seems like the original motivation for this rule was -- it was driven by the two-cell consideration. This was associates being harassed and subject to unwanted sexual advances, unwanted sexual conduct. And with all of the things that have come out in Hollywood – Harvey Weinstein, Kevin Spacey, et cetera – do you think that if they were trying to go for a more targeted rule to deal with this sort of harassment, why do you think they wrote this rule that it would be so broad? I mean, this is like trying to kill the seal with a shotgun.

 

Prof. Josh Blackman:  I think if they had written a rule that had only targeted sexual harassment on the basis of gender, other groups would have felt perhaps left out. You know, what about racial harassment, what about gender identity, sexual orientation, go down the list. So the eleven protected classes, I think they were designed to cover all the possible bases of groups that are subject to harassment. So I don't think they could've written a narrowly tailored rule going all in the activist's sort of #MeToo problems that we've seen happen in the last year that have really come to the fore. But, yeah, the rule is not nearly narrowly tailored to the sort of problem that they identified, and I think they could've drafted something.

     

      Specifically, we have a body of case law for sexual harassment, and one of the important factors is it has to be both severe or pervasive, and it has to create a hostile or offensive working environment. And those are standards put in place, I think, to deal with possible constitutional doubts. So this rule recognized none of those limitations. It was broadly applied. Even a single one-off comment a bar association dinner table could now give rise to not just perhaps social scorn but also a bar complaint.

 

Micah Wallen:  We'll move on with the next question.

 

Ed Jacobs:  Good afternoon. This is Ed Jacobs from St. Croix, New York's Virgin Islands. How likely is it that there will be a court challenge in one of the states that has adopted the ABA model rule that would end up either before a state supreme court or perhaps even a federal court to try to strike down the rule?

 

Prof. Josh Blackman:  Thank you for the question. Again, I think I mentioned earlier, [inaudible 57:32] challenge on the pleadings. So you have to prove it unconstitutional or [inaudible 57:33]. So probably you'd have an as-applied challenge. And I think you will have an as-applied challenge sooner or later.

 

      In terms of the U.S. Supreme Court, these as-applied challenges are not very good vehicles. I don't think there'd even be a circuit split, so I think a SCOTUS case might not be in the works for a while. But you should pay very close attention to Justice Thomas's decision in the NIFLA case where he mentioned lawyers. And I was actually in the Court last June when Justice Thomas announced the NIFLA opinion. I was just sitting there listening, and when he said lawyers, I went, "Lawyers?! 8.4(g)." I just almost stood up in my chair. So I'm sure that Justice Thomas is aware of this; everything's on his radar, and the Justices are indeed thinking about it.

 

Micah Wallen:  I believe we have one more question lined up in the queue, so we'll proceed to that.

 

Caller 10:  What do you think about Justice Kavanaugh's testimony in the hearings that he said that we had rules that a single instance of the "n" word constituted a discriminatory workplace environment?

 

Prof. Josh Blackman:  Is that a case he had ruled on? I didn't watch the entire testimony, so I'm not sure what you're referring to.

 

Caller 10:  He just said that even one instance of the "n" word was constituted as [inaudible 58:52] a discriminatory workplace environment.

 

Prof. Josh Blackman:  Yeah, I'll be honest, I don't like opining on cases I haven't really studied, but I do appreciate the question. So thank you very much.

 

Micah Wallen:  All righty. Well, that is all the questions we have lined up. Oh, one more came through. We'll make this the very last one.

 

Caller 11:  Yes, hello. I enjoyed the presentation. I wonder if you could expand on the idea that this is not content neutral. For any example you give, it seems to me you could turn it around and say, well, it could be painted by a person subjectively as discriminatory or harassing. For example, your "mismatch" example of affirmative action. Someone could say, "Defending affirmative action is demeaning to me because it suggests that people who look like me cannot compete, do not have the intellectual acumen to be here and need affirmative action." I'm wondering whether or not that could constitute a content-neutral defense. Or if not, why not, and what lies behind the idea that there's a strong argument that this is not content neutral? Or maybe to put it differently, not unbiased between a pro- and anti-position on any given policy dispute.

 

Prof. Josh Blackman:  Yeah, thank you for the question. Whenever you have a statue that defines speech as harassment or demeaning or any sort of word like this, it's an implicit value judgement where some speech is harassing and some speech is not. That can be, I think, easily classified as viewpoint discrimination, as I noted earlier. But I think you also pigeonholed into perhaps a content-based restriction because speech that is harassing is permissible; speech that's not harassing isn't. You're categorizing speech. And I think under a content-based approach, you have strict scrutiny applied. If you want to read Eugene Volokh's work on how workplace harassment laws are, or perhaps are not, constitutional, I think you should give it a careful read. But I think what saves us the loss from any obvious facial challenge is the requirement is severe or pervasive in creating a sensitive work environment. It's got to be something ongoing that's not just the speech; it's speech plus. And this rule applies to speech and speech alone. I think that's why you have a very difficult time of upholding this regime.

 

Micah Wallen:  And on behalf of The Federalist Society, I want to thank our expert for the benefit of his time and expertise today. And thank you all for joining us. 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 fedsoc.org/multimedia.