A Misguided Proposed Ethics Rule Change:
ABA Model Rule 8.4(g) and the States
History & Background
In July 2015, the ABA's Standing Committee on Ethics and Professional Responsibility presented a working draft of amendments to the ABA's Model Rules of Professional Conduct that directly addressed lawyer bias, prejudice, discrimination, and harassment in the black letter of the Rules. These amendments were drafted at the urging of the ABA's Goal III Entities - the Commission on Disability Rights, the Commission on Racial and Ethnic Diversity in the Profession, the Commission on Sexual Orientation and Gender Identity, and the Commission on Women in the Profession. A couple of months later, in October 2015, the Commission on Sexual Orientation and Gender Identity sent a memo to the Standing Committee on Ethics and Professional Responsibility supporting adoption of a revised rule.
The ABA adopted Model Rule 8.4(g) in August 2016. In adopting its new model rule, the ABA largely ignored over 480 comment letters, most opposed to the new rule. Even the ABA’s own Standing Committee on Professional Discipline filed a comment letter questioning whether there was a demonstrated need for the rule and raising concerns about its enforceability, although the Committee dropped its opposition immediately prior to the House of Delegates’ vote.
The new proposed rule goes into effect, however, only when it is adopted in a state.
To understand the issues surrounding ABA Model Rule 8.4(g) in a nutshell, watch this two-minute video by First Amendment scholar Professor Eugene Volokh, in which he explains why ABA Model Rule 8.4(g) is a speech code for lawyers, and read CLS Executive Director David Nammo’s letter to the ABA Ethics Committee regarding the problems with ABA Model Rule 8.4(g).
For a more in-depth discussion of ABA Model Rule 8.4(g), watch the debate held by The Federalist Society between Professor Volokh and Rob Weiner.
Additionally, Center Director Kim Colby wrote a memorandum discussing the pitfalls of ABA Model Rule 8.4(g).
CLS' Nationwide Efforts Fighting ABA Model Rule 8.4(g)
Shortly after the ABA adopted Model Rule 8.4(g), the ABA sent a letter to every state supreme court asking it to also adopt ABA Model Rule 8.4(g). The model rule, therefore, is on the radar of every state supreme court and is, in that sense, “under consideration.”
Each state may determine for itself whether to adopt ABA Model Rule 8.4(g). The ABA claims that twenty-four states already have a black-letter rule like ABA Model Rule 8.4(g), but that claim is not accurate. Twenty-four states have a rule that addresses "bias" in some way, but no state, except Vermont, has a rule as overly broad in scope as ABA Model Rule 8.4(g). Thirteen states have a more restricted comment rather than a black-letter rule. The remaining fourteen states have neither a comment nor a black-letter rule.
Some states have already publicly proposed adoption of ABA Model Rule 8.4(g). CLS has filed a comment letter opposing adoption of ABA Model Rule 8.4(g) in every state in which CLS was aware of an open comment period. Read CLS Executive Director David Nammo’s comment letters (listed in order of most recently submitted):
- South Dakota comment letter
- Pennsylvania comment letter (September 2019)
- Iowa comment letter
- Alaska comment letter
- New Hampshire comment letter (May 2019)
- Utah comment letter (2019)
- New Hampshire comment letter (April 2019)
- District of Columbia comment letter
- Maine comment letter
- New Hampshire comment letter (2018)
- Arizona comment letter
- Idaho comment letter
- Tennessee comment letter
- Louisiana comment letter
- Utah comment letter (2017)
- Nevada comment letter
- South Carolina comment letter
- Pennsylvania comment letter
- Illinois comment letter
- Montana comment letter
- California comment letter
Work needs to be done in all 50 states, regardless of whether a new rule has been publicly proposed there or not. Some state bars or state supreme courts want to push ABA Model Rule 8.4(g), and CLS wants to help individuals in the states educate their state bars and state courts as to the immense problems posed by ABA Model Rule 8.4(g).
CLS has attorney members in almost all states and the District of Columbia. In several states, concerned attorneys have already succeeded in educating their peers as to the reasons why ABA Model Rule 8.4(g) should not be adopted in their state. Listed to the right are the states where CLS knows that there has been some talk or consideration of ABA Model Rule 8.4(g).
CLS has developed resources to help attorneys explain the problems with Model Rule 8.4(g). We recommend the following resources as you continue to look into this matter:
ABA Journal Article, October 2017
The Christian Lawyer Article The Evolution of the New ABA Model Rule 8.4(g)
Comparison of State Black-Letter Rules to Model Rule 8.4(g
Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession by Michael McGinniss
Professionalism for the Ethical Lawyer: Hypotheticals and Analyses (condensed 8.4 version) by Thomas Spahn
The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought by Ronald D. Rotunda
A Speech Code for Lawyers, Banning Viewpoints that Express ‘Bias,’ including in Law-Related Social Activities by Eugene Volokh
Texas Attorney General Letter Concerning the Unconstitutionality of ABA Model Rule 8.4(g)
Louisiana Attorney General Letter against Adoption of ABA Model Rule 8.4(g)
South Carolina Attorney General Letter against Adoption of ABA Model Rule 8.4(g)
Tennessee Attorney General Letter against Adoption of ABA Model Rule 8.4(g)
CLS Letter to the ABA Opposing Adoption of Model Rule 8.4(g), March 16, 2016
Alaska Attorney General Letter Expressing Constitutional Concerns of ABA Model Rule 8.4(g)