A little over a week ago, the Tennessee Supreme Court issued a one page order formally rejecting a proposal to adopt ABA Model Rule 8.4(g).
This ABA section has proven to be controversial. Pennsylvania rejected it, and just when it looked like Nevada would adopt it, it decided to retract its position in reaction.
More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule. And now we can add Tennessee to the list of states that have considered it and rejected it.
The Court's order states, in part:
On November 15, 2017, the Tennessee Board of Professional Responsibility (“BPR”) and the Tennessee Bar Association (“TBA”) filed a petition asking the Court to amend Rule 8, RPC 8.4 of the Rules of the Tennessee Supreme Court by adopting a new RPC 8.4(g). This proposed rule of professional conduct provision pertains to the prohibition of discrimination and harassment by attorneys in relation to the practice of law. . . . .
The Court has received in excess of four hundred (400) pages of comments to the proposed amendment to Rule 8, RPC 8.4, from members of the bar, members of the public, and various organizations, including the Knoxville Bar Association and the Memphis Bar Association. . . .
The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED.And that's that. No further explanation or discussion. Yet, it is safe to assume that the comments probably explored the same concerns that have been raised elsewhere (some of which I discussed in my comments to the original ABA proposal. The proposal changed a little since then but it remained problematic.)
Brian Faughnan, who publishes Faughnan on Ethics (blog I like), was directly involved in the process in favor of adopting the proposal in Tennessee and was, understandably disappointed in the result. He offers his thoughts on the matter here.
UPDATE: Just a few minutes after I posted the story, the ABA/BNA Lawyers' Manual on Professional Responsibility ran a story (or here) on this. In it, it mentions that South Texas College of Law constitutional law professor Josh Blackman told Bloomberg Law that lawyers “don't forsake all of [their] free speech rights by becoming an attorney.” And the bar doesn't have the same interest in disciplining lawyers for conduct at a bar association dinner or at continuing legal education classes, as it does in disciplining lawyer conduct in a courtroom, deposition or mediation, Blackman said. The rule is a tool “to silence and chill people.” Blackman was recently protested and heckled by students at CUNY Law School for speaking about free speech. Blackman said those kids will be enforcing 8.4(g) in a few years and “if you give these kids a loaded weapon, they'll use it to discipline people who speak things they don't like.”