Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected Speech

|The Volokh Conspiracy |

Prof. Josh Blackman, who has commented extensively on the Rule 8.4(g) debates, passes this along:

In 2016, the American Bar Association proposed Model Rule 8.4(g). Under the Rule, it is misconduct for an attorney 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." Comment [4] explains that "conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."

Over the past three years, almost every state court that has considered the issue has declined to adopt Model Rule 8.4(g). Several state attorneys general have concluded that the Rule would violate the First Amendment. Only one state—Vermont—adopted Model Rule 8.4(g) as proposed. Recently, Maine adopted a variant of Model Rule 8.4(g) with certain changes to address constitutional concerns. Specifically, Maine modified the comment to exclude conduct at "bar association, business or social activities in connection with the practice of law."

After the rule was adopted, Bloomberg Law sought comments from me and Professor Stephen Gillers (NYU), which I reproduce in their entirety:

"Critics say the rules could be unconstitutional. 'Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as 'demeaning' to others,' Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. 'The government should not chill attorneys from talking about these important matters.'"

"But New York University School of Law legal ethics professor Stephen Gillers disagreed. 'The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,' Gillers said in an email. 'It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.'"

I was stunned by these comments, so I checked with Gillers to verify their accuracy. He told me they were accurate.

Gillers is profoundly mistaken on several fronts. First, he does not accurately characterize Rule 8.4(g). The rule does not police "statements in connection with law practice." It regulates speech and conduct "related to the practice of law." There is a significant difference between statements made in open court, or during a deposition, and statements made at a bar function or a CLE event. Indeed, Maine addressed this constitutional infirmity by specifically excluding social functions from the comment concerning "conduct related to the practice of law."

Second, Rule 8.4(g) is not limited to "racist, sexist, and homophobic statements." The rule prohibits far more innocuous expressions that may simply be "demeaning" to others. I published an article in the Georgetown Journal of Legal Ethics that considers various debates about same-sex marriage, affirmative action, and other hot-button issues that may be viewed as demeaning.

Third, Gillers' hyperbole—"preposterous" and "embarrassment"—is self-evidently wrong. The positions I have advanced, along with Eugene Volokh, have been echoed by several Attorneys General, state court judges, and bar committees nationwide. Maybe we are right. Maybe we are wrong. But these arguments are well within the bounds of rational discourse. Moreover, there are several cases that support this position, including NIFLA v. Becerra. A recent ABA Section on Litigation publication quoted Professor Cassandra Burke Robertson, who observed that "the biggest question about Rule 8.4(g) has been whether it unconstitutionally infringes on lawyers' speech rights—and after the Court's decision in [NIFLA v.] Becerra, it increasingly looks like the answer is yes." These positions are not "preposterous" or an "embarrassment."

Fourth, Gillers should be embarrassed by his ad hominem attack on those who challenge the law's constitutionality: "white men" who "see some advantage" from criticizing the rule. This sort of discourse has no place in academic dialogue. Both Volokh and I have engaged in respectful debates on this topic in academic forums, without our adversaries resorting to these baseless slurs.

There is some irony to Gillers's statement. He made a statement that people could reasonably find demeaning based on race—that is, white people oppose Rule 8.4(g) so they can gain some advantage by harassing minorities. Had Gillers made this statement in "conduct related to the practice of law," perhaps during a debate sponsored by a bar association, he could be subject to discipline. Of course, I would vigorously oppose such a charge. All lawyers, especially academics, should have the space necessary to make a wide range of statements on matters of public concern, without fear of punishment. But Gillers could be subject to discipline under a fair application of the rule that he defends.

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  1. What you apparently don’t get is that there are a fair number of people out there who want to chill ‘protected’ speech.

    Maybe they can’t come out and say it, maybe they rationalize that the speech they dislike shouldn’t be protected, but that’s the bottom line. Not everybody values freedom of speech.

    Yes, he could be subject to discipline under a fair application of the rule he defends, but such rules are not intended to be applied fairly.

    1. ‘Zactly. But I would go further: there is a majority out there who want to do away with free speech. I doubt the first amendment, as written, could muster a majority in Congress in a secret ballot. Probably wouldn’t get a single vote among the “Progressive” wing.

    2. “What you apparently don’t get is that there are a fair number of people out there who want to chill ‘protected’ speech.”

      Sure. That’s a broad claim. I wish more people would improve their decision-making skills regarding what they choose to say out loud. Which puts me under that umbrella. Wishing people would censor themselves is not quite the same thing as wishing other people would censor it for them.
      Merchants who want to continue having customers have to limit what the staff says about the difficult customers. They’re under your umbrella, too. You’ve still grossly wrong when you conflate that with “not valuing freedom of speech.”

  2. Can someone please explain to me what the purpose is of rules like this?

    I can see the point of misconduct rules where they reflect the fact that legal services are a credence good, where the customer never quite knows whether the services they bought are any good. And so it makes sense to avoid a “market for lemons” problem by requiring things like bar exams, ongoing legal training, and standards that are designed to make sure the customer gets the best representation possible.

    But I fail to see how a rule against lawyers harassing people does any of those things. If your lawyer harasses you, you’ll know and (presumably) fire them. If your lawyer harasses someone else, it’ll either become public knowledge (and you have the option of firing your lawyer) or it doesn’t, in which case you have no reason to care.

    1. Don’t confuse pretext with purpose. The purpose is, precisely, to chill protected speech.

      1. Exactly. The ABA’s consistently leftist take on all things legal can be seen as drifting toward what is going on in college campuses across the country.

        Argue against affirmative action: racist.
        Lobby for charter schools: racist.
        Litigate against government takings for do-gooder state social projects: racist.

        Bottom line, is, attorneys better adopt and digest the current speech codes, PC rhetoric and sexual identity wokeness, under pain of licensing sanctions.

        Gillers’ is just virtue signalling, by the way. He knows which is the safe side of the street.

    2. “Can someone please explain to me what the purpose is of rules like this? ”

      To ensure that all people get the legal representation they need. As a side bonus, maybe rehabilitating the profession of law in the public esteem a little bit. (remember that professional ethics are primarily intended to preserve the profession, not the practitioner.)

  3. […] Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected …  Reason […]

  4. Gillers was an idiot when I was at NYU nearly forty years ago. He apparently has not improved with age.

  5. I think this needs to be fleshed out some more. The current rules of legal professional responsibility already impose restrictions on attorneys that would be 1st Amendment violations for non-lawyers (e.g. advertising rules, mandatory reporting of ethical violations, restrictions on ownership, and many other areas).

    A complete analysis of Rule 8.4 would first look at the current 1st Amendment jurisprudence around professional responsibility. This might be too in depth for a blog post.

    1. The rules you cite are generally fact based, that is did a lawyer do something specific, I realize there my be some ambiguity in some cases, however this rule is largely subjective and hinges on what constitutes “demeaning” another person or group.

      1. Working out what’s “demeaning” shouldn’t be any tougher than working out what’s “obscene”, and that was resolved so easily.

  6. Gillers looks pretty white himself. So under his logic, we should disregard his argument.

    Done.

  7. Besides NIFLA, another great case to cite is Legal Services Corp. v. Velasquez. SCOTUS decided that Congress couldn’t limit the arguments that could be made by persons funded by legal aid because (1) the lawyers were speaking on behalf of their clients and so it didn’t fall under the government speech doctrine (compare Rust v. Sullivan) and therefore was protected by the First Amendment and (2) it interfered with the function of the courts and the importance of an independent bar (a sort of due process argument).

    SCOTUS has been clear that most of what lawyers do and that would be affected by Model Rule 8.4(g) is protected speech that can’t be abridged by being labeled conduct, including: (1) arguments made in courts (Velasquez discussed above; Borough of Duryea v. Guarnieri); (2) soliciting clients, at least where not done solely for profit (NAACP v. Button; In re Primus juxtaposed with same-day decision in Ohralik v. Ohio State Bar Ass’n); (3) speaking on behalf of clients in public (Gentile v. State Bar of Nevada); (4) providing legal advice (Railroad Trainmen v. Virginia Bar; Mine Workers v. Illinois State Bar); and (5) informing public of availability of certain legal services, although subject to lesser protection in some cases under the commercial speech doctrine (Bates v. State Bar of Arizona; Zauderer v. Office of Disciplinary Counsel; NIFLA discussing many prior commercial speech cases; Florida Bar v. Went For It, Inc., which survived strict scrutiny, although I agree with Justice Kennedy’s dissent there).

  8. Gillers did indeed make a similar comment about “white men” at the Federalist Society National Lawyers Convention in November 2017 during the session that discussed this proposed rule. Here’s the link to video of the session: https://fedsoc.org/conferences/2017-national-lawyers-convention#agenda-item-using-the-licensing-power-of-the-administrative-state-model-rule-8-4-g.

  9. Realistically, if you don’t report Gillers to the Bar authorities relevant to his licensing for his mean-spirited, demeaning, stereotyping anti-white, anti-male statements, which clearly violate RPC 8.4(g), you’re committing an ethical violation yourself. [Model] RPC 8.3(a).

    And, no, I’m not being facetious. Go read the RPC.

    Please also note that most states grant immunity from suit for those who make complaints to the Ethics Police, so whale away.

    1. report him. The irony would be sweet. Robespierre chopped on his own guillotine.

  10. Imposing a duty of confidentiality chills protected speech. So does the duty of candor to the tribunal.

  11. “The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,’ Gillers said in an email. ‘It has come almost exclusively from white men who apparently see some advantage in being able to do so. ”

    Unfortunately this is what passes for argument among too many academics nowadays. It is part of the anti-intellectualism that has come with progressive dominance of the universities.

    1. Being against racism, sexism, and homophobia is “anti-intellectual”???

      1. Calling anything you don’t want talked about “racism, sexism, and homophobia” certainly is.

        1. That’s fine, but it’s not in the comment I responded to.

          1. So you admit to being ignorant of modern day speech and how cries of racism and bigotry are used as a political weapon.

            At least you finally admitting that.

            1. I admit that you can’t seem to read for content.

              Was that the confession you were looking for?

      2. No. Ad hominem is.

  12. Liberal fascism strikes again

  13. The backward and bigoted have rights, too.

    1. Yes. You do.

    2. Eugene Volokh: “… Gillers should be embarrassed by his ad hominem attack on those who challenge the law’s constitutionality: “white men” who “see some advantage” from criticizing the rule.”

      Rev. Arthur L. Kirkland wouldn’t be embarrassed. Ad hominem is his middle name.

  14. But Gillers could be subject to discipline under a fair application of the rule that he defends

    The entire point of such rules is that their application is not “fair”, in the way you suggest.

    Only the “wrong” bigotries will be punished; the “right” ones will be winked and nodded at, or actively applauded, and those doing so will likely refuse to admit they are bigotry.

    1. In other words, the winners write the history books.

      1. Then the heirs of the winners over correct by historical revisionism (like the claim we should have continued to sell oil and iron to Bushido Japan so they could continue raping China, and by cutting supply to their war machine we forced them to bomb Pearl Harbor).

      2. The losers have done a pretty good job of rewriting the past, see modern day intersectionality.

        1. “When I am weaker than you, I ask you for freedom because that is according to your principles; when I am Stronger than you, I take away your freedom because that is according to my principles.”

  15. The definition of “discrimination” in the comment is a bit open-ended. First, it’s not comprehensive (“Such discrimination includes…”), and second, it’s unclear whether there has to be a freestanding harm,or if the objectionable speech is harmful in itself. (In which case, the word would be surplus.)

  16. Bar rules exist to regulate professional duties and relationships — not lawyers’ entire lives. This is a very pernicious proposed rule, but no surprise coming from the incredibly UN-representative, consistently left-wing ABA, for which I have zero respect. Fortunately for me, those in charge of revising the Texas Rules of Disciplinary Procedure aren’t big ABA fans either.

  17. I can’t wait for SJW lawyers to become mainstream. You guys better develop some strong professional standards that get these people disbarred. They’re psychotic neo-Marxist iconoclasts.

    1. Are you going to go after the fictional ones, too? Stopping future lawyers from ever reading “To Kill a Mockingbird” is going to be a tough ask. Or does Atticus get a pass for being pro-firearm?

  18. Can’t believe that anyone would expect intellectual consistency or honesty from a leftist. Everything about their history shows the opposite to be the norm.

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