Thursday, January 26, 2023

Idaho Supreme Court issues resolution explaining why it rejected Model Rule 8.4(g); hint: because it is unconstitutional...

In November 2021, the Idaho State Bar Commissioners recommended an amendment to Idaho Rule of Professional Conduct 8.4 to include anti-discrimination and anti-harassment provisions along the lines of those in Model Rule 8.4(g).  After the resolution was adopted by the members of the Bar, the proposal was sent to the Idaho Supreme Court but the Court declined to adopt the proposed amendment.  

Last week, the Court issued a resolution providing a full explanation of its rejection of the resolution explaining that it was “appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future.”  

The Court then proceeded to explain that although it commends the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession it felt obliged to reject the proposed resolution because, among other things, the proposed amendment “violates the First Amendment because it is not narrowly tailored to withstand strict scrutiny” and because it is void for vagueness and could have a chilling effect on speech.

You can find the court's resolution here or, through another link here.

I am not surprised by the opinion.  I, and many others, have been arguing that Model Rule 8.4(g)'s constitutionality is questionable for a long time.  You can read all my posts on the subject by going here and scrolling down.

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