Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g). I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing. At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.
You should watch the hearing to reach your own conclusions, but here are my quick thoughts. First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech. That is a key to me. Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference. The rule recently adopted in New York, which I think is the best yet, takes that approach. However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment. Not great, but I can live with it.
Now, the hearing did not go as I expected. I thought there would be more comments in favor of the rule. Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it. Other than that, nothing.
The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law. That argument fell flat on its face and was totally unconvincing. The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law." If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language. If that is the intent, I wish they would simply leave it as "related to" to avoid confusion. If that is not the intent, then they need to make the distinction clear.
Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether. As you watch the arguments consider which side you think has more support. One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.
As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.
I was surprised that only one person spoke in favor of the rule. Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it. Not one of them argued for changes to the proposal to make it more acceptable to them. They were all or nothing. The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety. Full stop. And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate. (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)
I was also surprised that there was no attempt at compromise. Speakers either wanted the full proposal rejected or adopted. Nothing in between. The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule. Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.
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