November 8, 2023
The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g). You can find the proposal here. For more information on the hearing and the other proposals, go here.
Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule. I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution. (To read my comments, go here and scroll through several pages of posts.)
I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states, Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.
The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.
But today’s post is about Illinois.
Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested. You can find the, as of now, current Illinois rule (8.4(j)), here. Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal.
That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule. The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing. [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing. The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it. For my comment on this case go here.] A case challenging the Constitutionality of the rule adopted in Connecticut is pending.
So, what are the highlights of the proposal in Illinois?
The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer. That makes the rule very limited in scope and available in very limited circumstances. It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.
In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law. By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law. Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.
The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating. For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.
Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.
To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself. But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.
Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”
Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.
Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct." A better way to draft this statement would have been
"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule. This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."
Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he 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.”
Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights. As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected. (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)
So, all in all, the proposal is a good effort and I expect it will be approved. I would make a few changes but I can live with it.
Would this proposed new version of the rule make a difference? How would it be used to regulate the practice of law? I am not sure we know exactly how, but here is a quick example. In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address. I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use. If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those. For my comment on that case go here.
UPDATE 11-15-23: The hearing was held today and you can watch it below or, if you can't see the player, you can go here. The discussion of the proposal starts at about the 29 minute mark. There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it. As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.
Here is the video. Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.
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