A few years ago, when Model Rule 8.4(g) was proposed and was being debated everywhere, I thought I would write a short article I was planning to call “Three things I wish people would stop saying about Model Rule 8.4(g).”
At the time, those three things were: “the rule does not cover speech,” “we don’t need to worry about the rule being overused because enforcing it requires proof of knowledge” and “we should not worry about it because the rules are rules of reason and regulators are not going to try to enforce them randomly or in violation of people’s rights.”
I never got around to writing the article, but I am happy that it eventually became clear that two of these statements were wrong and most people stopped repeating them. The rule is based on a negligence standard (not knowledge) and it does apply to speech. In fact, the Pennsylvania version of the rule was declared unconstitutional because it was found to violate the First Amendment (as the Model Rule itself probably would be too.) (See here, here and here).
But that is not why I am writing about this today. I am writing because the third statement I wish people would stop repeating persists, and according to one comment I read recently, it is part of a proposal for a new rule in Illinios.
According to Faughnan on Ethics,
“[t]he Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.””
I will leave aside the fact that Illinois already has a rule that regulates discrimination and harassment that is in some ways better than MR 8.4(g) so my comment is only on this notion that the rules are rules of reason which then leads to the conclusion that we should not worry about the possible unconstitutionality of the rule because we should trust those in charge of applying it will always do the right thing.
I wish people would stop saying this! Not only is it a way to give up on the challenge to draft a rule that would survive a constitutional attack, which implies we are willing to live with a questionable rule, but it is also naive and dangerous. Constitutional protections exist to protect individuals from abuses by the government. You are telling me now we are willing to give up on our protections because we are confident the government will not abuse the rules it creates to regulate us?
How many opinions and examples of abuse do we need to realize this is naive, at best. Lawyers have been disciplined for engaging in Constitutionally protected conduct and speech before (see here and here, for example) and basing decisions on deference to the "reasonable perspective" of the regulators will inevitably result in more discipline for protected conduct that some find objectionable or offensive.
Now some might want to say that the conduct of those lawyers was reprehensible or offensive and that they should be disciplined for it. Ok, you can take that position but if you do, please recognize that you are saying that it is fine with you if the government is allowed to impose discipline for constitutionally protected conduct and speech.*
And this leads me to a fourth thing that I wish people would stop saying and that is that anyone who criticizes Model Rule 8.4(g), or its state equivalents, must be in favor of discrimination. This is a sign that the person making the statement has run out of arguments and the only thing left is to issue a personal attack.
Stop it! Criticizing the rule does not mean that one is in favor of allowing discriminatory conduct to continue. It means that one would prefer to see the regulation of that conduct be done properly. There is plenty of serious literature about why this is important and about how it might be possible but requires more work. If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here. (Note that this link is to the "current issue" page of the law review so it may not take you to the right Volume once the new issue is published. So, go download the articles now even if you don't have time to read them now because they may not be available for long.)
For all my previous posts on the debates about Model Rule 8.4(g) and other related developments go here and scroll down.
*Another reason I am concerned about this type of reasoning is because it has implications for other aspects of our lives. As I am sure you are aware, there are statutes around the country now that seek to regulate how history is taught in our schools, and a recent US Supreme Court decision opened the door to religion in public schools (as long as it is the religion that the Court approves of, of course). Soon teachers like me may not be allowed to teach issues related to race and the law, and so on. I can't say that the government is not going to abuse its view of what it finds offensive and use that view to impose discipline on those who want to explore other views. If we leave it to those who are in charge of applying the rules to define what is "officially" offensive, history teaches us that, at least, the rules will be overused to impose their view of what is offensive.
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