Just a few minutes ago I posted an item on the much discussed newly adopted ABA Model Rule 8.4(g), and then I found this new bit of news: Last month the Pennsylvania Disciplinary Board proposed an amendment to the state's Rule 8.4 to address the issue of discriminatory conduct. Interestingly, however, the proposal actually rejects the ABA Model Rule and proposes instead the approach currently in place in Illinois. The proposal would amend the current rule to make it misconduct to "violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer." This is the same language that has been in Illinois Rule 8.4(j) since 2010.
Obviously, the Illinois approach is much narrower than the new ABA Rule, but it avoids the potential problem of imposing discipline for engaging in constitutionally protected speech. Under the ABA rule, the
disciplinary agency itself makes the determination of whether the lawyer
committed discriminatory conduct. Under the Pennsylvania proposal, that
conduct must violate an applicable law, and if there is a forum to make
the determination of whether the lawyer committed a violation, that
process must take place first.