Ethics: Model Rule 8.4(g) and Constitutional Limits on Regulating Attorney Expression of Unpopular Positions

In 2016, the American Bar Association proposed Model Rule 8.4(g) which makes it professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” ABA Model Rule 8.4(g). The rule utilizes a broad definition of “conduct related to the practice of law” which includes not only “representing clients; interacting with witnesses” and other in court activities, but also “participating in bar association, business, or social activities in connection with the practice of law.” Id. Comment 4.

The advent of this rule immediately generated intense controversy. Many states expressly rejected the adoption of Model Rule 8.4(g). And a wide variety of First Amendment and Constitutional Law scholars have written criticizing Model Rule 8.4(g) for its potential to stifle or censor attorney speech. In the first few years after the ABA put the rule forward, only Vermont adopted it wholesale. But in the past few years, a few additional states including Pennsylvania and New Mexico have adopted versions of the rule.

The Pennsylvania rule was challenged last year shortly after its adoption. A federal district court in Greenberg v. Haggerty, Case No. 20-3822 (E.D. Penn. Dec. 8, 2020), and found Pennsylvania's version of ABA Model Rule of Professional Responsibility 8.4(g) to likely be unconstitutional and issued a preliminary injunction against its enforcement.

Listen as this panel of First Amendment experts discusses the regulation of attorney speech, the legality of Model Rule 8.4(g), and what Greenberg v. Haggerty, teaches going forward.