One of the top Professional Responsibility stories of 2016 was the ABA's decision to amend Model Rule 8.4 to add that under certain circumstances discrimination and harassment constitutes misconduct subject to discipline. There was a lot of opposition to the amendment, mostly by religious organizations, but also a lot of support for it and its adoption was celebrated by many.
I wrote about my concerns with the rule several times and others also published similar arguments on the possible unconstitutionality of the rule (at least as originally proposed).
More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule. Earlier this year, I reported that Nevada might adopt the rule, but to my knowledge it has not happened yet. (If it did, please let me know.)
Now comes news that last month, after suggesting some changes to the language of the Model Rule and its comment, the Tennessee Bar Association has asked the Tennessee Supreme Court to adopt the new rule. Go here for some details.
Interestingly, one of the changes proposed is designed to address the argument that the Model Rule may violate the First Amendment (at least in its application). For this reason, the Association added a Comment not found in the Model Rule, that provides: "Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section."
This is a good addition to the comment but I am not sure it addresses all the concerns, particularly if the final comment also includes the current language in the Model Rule which states that "[c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Does the added language eliminate the problems described by UCLA professor Eugene Volokh? What do you think?