A blog reader from Indiana wrote to me to tell me that Indiana adopted a version of the proposed Model Rule 8.4(g) before it was adopted by the ABA. It says that it is misconduct to “engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”
I was not aware of this rule in Indiana and now that I see it, I have a few comments. First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech. Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.” Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.