ABA Journal Magazine
October 2017
By David L. Hudson Jr.
Deborah Rhode: "There are enough incidents of sexual harassment that make it important for the profession to have largely what is a symbolic statement." Photo courtesy of Stanford University
States have been divided on whether to adopt new ABA Model Rule 8.4(g), which prohibits lawyers from engaging in harassing or discriminatory conduct. The Vermont Supreme Court has adopted the rule, while the South Carolina Supreme Court has rejected it. The Nevada and Utah supreme courts solicited public comments on the rule through July.
The ABA House of Delegates adopted Rule 8.4(g) in August 2016 at the ABA Annual Meeting. The rule was designed in part to prohibit discriminatory harassment not only in the practice of law but also at bar association meetings and other social functions. Comment 4 to the rule explains that “conduct related to the practice of law” includes not just representing clients and courtroom activity but also “participating in bar association, business or social activities in connection with the practice of law.” An ABA report noted evidence of sexual harassment at “activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm or in connection with their practice of law.”
“There are enough incidents of sexual harassment that make it important for the profession to have largely what is a symbolic statement,” notes Stanford University law professor and ethics expert Deborah L. Rhode.
Supporters say that the rule is necessary to enforce anti-discrimination principles, and that lawyers—as officers of the court—should be held to higher standards. Opponents contend it imposes an unconstitutional speech restraint on lawyers and extends too far beyond the traditional definition of the practice of law.
FIRST AMENDMENT CONCERNS
Some constitutional law and First Amendment advocates suggest the rule infringes on core freedoms. In a 2016 article in the Georgetown Journal of Legal Ethics, South Texas College of Law professor and constitutional law expert Josh Blackman explains that Rule 8.4(g) fails to require that the harassment or discrimination be severe or pervasive, a key component of federal and state anti-discrimination laws. “A single ‘harassing’ comment could result in discipline,” he writes. He also warns that teaching CLE classes or law school classes could fall within the ambit of the Model Rule.
UCLA constitutional law expert Eugene Volokh, who has written about the relationship between harassment and free speech for decades, wrote a letter to the Nevada Supreme Court justices opposing the adoption. In it, Volokh says the rule “would punish and chill a wide range of speech on important topics.” He also warned that the proposed rule in Nevada would “turn ordinary employment disputes into disciplinary matters.” He further questioned the rule’s application to socioeconomic status, a term not defined in the rule or in Nevada law.
“I think that restricting discrimination and harassment in the conduct of litigation … may be within the courts’ authority to regulate the bar in order to prevent interference with the administration of justice,” Volokh says. “But the proposed rule deliberately goes far beyond that, indeed to social and bar activities related to lawyering, such as continuing legal education events, conversations and bar association dinners, and so on.”