ABA Issues Formal Opinion on Purpose, Scope, and Application of ABA Model Rule 8.4(g)

Opinion states that an "inaccurate, offensive, or upsetting" point of view discussed at a CLE Program would not violate Model Rule 8.4(g).

|The Volokh Conspiracy |

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 493 on the purpose, scope, and application of ABA Model Rule 8.4(g).

Here is a summary from the abstract:

Rule 8.4(g) covers conduct related to the practice of law that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. However, and as this opinion explains, conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.

The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer's speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer's expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective.

I have written about the Rule here and here, and submitted letters to several state supreme courts in opposition to Rule 8.4(g). The ABA opinion does not cite my work, or that of any other 8.4(g) critic. (The opinion frequently cites supporters of the rule). But the opinion addresses several concerns that I, and others, have raised. I will provide a summary of the opinion in this post.

"Severe or Pervasive" Standard Does Not Apply

The opinion makes clear that the "severe or pervasive" standard does not apply to Rule 8.4(g). A single incident could amount to misconduct:

For example, a single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of law would likely not be severe or pervasive enough to violate Title VII, but would violate Rule 8.4(g).The isolated nature of the conduct, however, could be a mitigating factor in the disciplinary process.

And in a footnote, the opinion lists 5 factors to consider with respect to discipline:

Whether discipline is imposed for any particular violation of Rule 8.4(g) will depend on a variety of factors, including, for example: (1) severity of the violation; (2) prior record of discipline or lack thereof; (3) level of cooperation with disciplinary counsel; (4) character or reputation; and (5) whether or not remorse is expressed.

The capacious nature of the fourth factor will likely swallow all others. And the fifth factor will likely be used to cow attorneys into admitting their fault.

Rule 8.4(g) Applies an "Objective Reasonableness" Standard

The opinion applies an "objective reasonableness" standard.

The existence of the requisite harm is assessed using a standard of objective reasonableness. In addition, a lawyer need only know or reasonably should know that the conduct in question constitutes discrimination or harassment.24 Even so, the most common violations will likely involve conduct that is intentionally discriminatory or harassing.

In other words, an attorney does not need to intentionally engage in misconduct. It is enough to know that an "objective" observer would know that his conduct amounts to harassment. In our maelstrom society, I do not know what an "objective" standard is with respect to race, sex, and other protected factors. Truly. Comments that were once thought to be innocuous have led to immediate cancellation. This standard in ABA Rule 8.4(g) can be weaponized.

"Harassment"

The opinion states that the term "harassment" is a well understood term.

Harassment is a term of common meaning and usage under the Model Rules.

The opinion relies on two dictionaries:

[Harassment] refers to conduct that is aggressively invasive, pressuring, or intimidating. FN 29

FN29: See, e.g., NEW OXFORD AMERICAN DICTIONARY 790 (3d ed. 2010) (defining "harassment" as "aggressive pressure or intimidation"); MERRIAM-WEBSTER DICTIONARY (defining "harass" as meaning "to annoy persistently"; "to create an unpleasant or hostile situation for, especially by uninvited and unwelcome verbal or physical conduct"), https://www.merriam-webster.com/dictionary/harass (last visited June 23, 2020).

The opinion cites two instances where the word "harassment" is used in the model rules.

First, Model Rule 3.5(c)(3) states:

"A lawyer shall not … communicate with a juror or prospective juror after discharge of the jury if … the communication involves misrepresentation, coercion, duress or harassment."

Here, the word "harassment" seems to resemble its neighbors: "misrepresentation, coercion, [and] duress." The committee, however, reads the word "harassment" far more broadly:

Here, the term "harassment," as in Rule 8.4(g), refers to conduct that is aggressively invasive, pressuring, or intimidating, including that which is reasonably perceived to be demeaning or derogatory, as demonstrated in In re Panetta.

Panetta relied on New York Rule of Professional Conduct that mirrors 3.5(c)(3) almost verbatim: it refers to "misrepresentation, coercion, duress or harassment." Panetta did not discuss harassment in particular. It merely sustained the Special Referee's report. I agree with the Committee that Panetta's conduct was "insulting, badgering, and threatening." But that standard is far more severe than "demeaning or derogatory." The Committee errs by trying to extend truly threatening behavior to speech that is merely demeaning–especially when it may be judged by a reasonable woke objective standard.

Second, the opinion relies on Model Rule 7.3.(c)(2). It states:

"lawyer shall not solicit professional employment … if … the solicitation involves coercion, duress or harassment."

Again, the phrase "harassment" seems to resemble "coercion" or "duress." But the Committee reads the phrase in a different fashion:

As with other uses of "harassment" in the Model Rules, a rational reading of the term includes badgering or invasive behavior, as well as conduct that is demeaning or derogatory.

The first half of the sentence does not support the second half. There is a huge difference between "invasive" threats and "demeaning" comments. The Committee made the same analytical leap twice, without sufficient reasoning. The opinion adds in a footnote:

Consistent with the guiding principle that the Model Rules are rules of reason and "should be interpreted with reference to the purposes of legal representation and of the law itself," the term "harassment" in Rule 8.4(g) must be construed and applied in a reasonable manner. See MODEL RULES Scope [14].

This hedge is not very reassuring.

"Discrimination"

Rule 8.4(g) prohibits both harassment and discrimination. The Committee explains that the terms overlap:

Bias or prejudice can be exhibited in any number of ways, some overlapping with conduct that also constitutes harassment. Use of a racist or sexist epithet with the intent to disparage an individual or group of individuals demonstrates bias or prejudice.

The committee cites In re McCarthy (Indiana 2010) to support its definition of "discrimination." But that case did not involve "discrimination." McCarthy did involve an interpretation of "bias or prejudice." It relied on an earlier version of Rule 8.4(g):

engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.

The word "discrimination" has a far more settled interpretation. (Or at least it did before Bostock). I am less troubled by this element of the rule, to the extent the "discrimination" prong is limited to the employment context. But extending the word concept of "bias" to the more nebulous harassment context, outside the practice of law, proves problematic.

"Constitutional Principles"

I take it that constitutional law is outside the purview of the Committee. But the opinion does consider two "constitutional principles."

The Committee does not address constitutional issues, but analysis of Rule 8.4(g), as with our analysis of other rules, is aided by constitutional context.46 For Rule 8.4(g), two important constitutional principles guide and constrain its application. First, an ethical duty that can result in discipline must be sufficiently clear to give notice of the conduct that is required or forbidden. Second, the rule must not be overbroad such that it sweeps within its prohibition conduct that the law protects.

The Court cites recent articles which rejected any possible First Amendment problems with Rule 8.4(g). But the Committee did not cite any contrary authority, including the opinions of several attorneys general.

The Committee then considers several attorney discipline cases that all arise in the practice of law. I explained long ago that the Bar's power to punish dissipates as they regulate activity that moves further away from the core legal practice. The Committee does not address that important limitation of state constitutional law.

The Committee also does not discuss recent precedent, such as NIFLA v. Becerra, which cast serious doubt on ABA Model Rule 8.4(g). That case held that the government lacks an "unfettered power" to regulate the speech of "lawyers," simply because they provide "personalized services" after receiving a "professional license." The failure to grapple with NFILA undermines the entire constitutional law analysis.

Hypotheticals

The opinion closes with five hypotheticals. These hypotheticals are designed to address directly concerns that I and others have raised. I think the committee is trying to grease the skids for enactment, and say that our critiques are not valid.

Consider the second hypothetical:

A lawyer participating as a speaker at a CLE program on affirmative action in higher education expresses the view that rather than using a race-conscious process in admitting African-American students to highly-ranked colleges and universities, those students would be better off attending lower-ranked schools where they would be more likely to excel. Would the lawyer's remarks violate Rule 8.4(g)?

I raised this precise hypothetical about "mismatch theory" in my 2017 article. The committee responds:

No. While a CLE program would fall within Comment [3]'s description of what constitutes "conduct related to the practice of law," the viewpoint expressed by the lawyer would not violate Rule 8.4(g). Specifically, the lawyer's remarks, without more, would not constitute "conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of . . . race." A general point of view, even a controversial one, cannot reasonably be understood as harassment or discrimination contemplated by Rule 8.4(g). The fact that others may find a lawyer's expression of social or political views to be inaccurate, offensive, or upsetting is not the type of "harm" required for a violation.

This answer confirms that a CLE event would fall within the ambit of Rule 8.4(g).  I am grateful the Committee thinks "inaccurate, offensive, or upsetting" views are outside the ambit of Rule 8.4(g). But I'll admit that I'm skeptical.  The opinion defined "harassment" as "aggressively invasive, pressuring, or intimidating, including that which is reasonably perceived to be demeaning or derogatory." Advocating mismatch theory would be, without question, deemed "demeaning or derogatory" to many people. I think that conclusion is objectively reasonable, in light of our present-day society. Indeed, during a class several years ago, I mentioned Justice Scalia's comments concerning mismatch theory, and the reaction was visceral. I cannot imagine what would have happened if I said Scalia was right!

This answer also hedges a bit. It says: "the lawyer's remarks, without more, would not constitute" misconduct. There's the wiggle room. There will always be something "more."

In short, this Q&A does not adequately address my concerns. And even if the conduct ultimately does not support discipline, attorneys will still have to litigate the proceedings for months and years. The complaint, and not the discipline, results in the chilling effect on speech.

***

I am grateful the Committee wrote this opinion. It filled in many of the gaps left unanswered by the Model Rule. But the opinion clarifies that many of my concerns were appropriate.

NEXT: Nice Legal Writing

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  1. “The existence of the requisite harm is assessed using a standard of objective reasonableness.”

    Gotta love lawyers. “It’s not subjective because we call it objective!”

    1. It’s an objective measurement of how really, really bad they made someone feel. In a context where the baddier they report they feel, the greater the financial rewards and the joy of seeing their opponent punished by government.

      Yes, science has no problem with that affecting measurements.

      1. The other thing is that I prefer to have bigots identifiable so that I am not blindsided by their bigotry. If someone hates me because of how I spell my last name, and some do, I’d rather know that before I trust the person rather than afterwards….

  2. The defining characteristic of Progressives is the belief that government can, and should, change people and society. You can’t deny that dictatorships change society; therefore they can, and should, change democracies. But because democracies, unlike dictatorships, can’t agree on what that change should be, all these diktats must be written as sloppily as possible, so that The Right People can interpret them properly. The idea that The Wrong People might misinterpret them when in power is beyond their ken.

    1. Should gets deeper, but Brown changed society.

      Even in a republic, people look to their leaders and the laws the promulgate as examples; it’s human nature.

      1. No. It’s only human nature when government has gotten so oppressive and meddling that it literally is more profitable, both financially and emotionally, to sic government on others before they sic government on you.

        Statists don’t recognize that government is ever oppressive or meddly enough.

        1. I disagree. Look at organizations; people model after their bosses even in pretty free work environments. Maybe you don’t, but people generally do.

          Your last paragraph is circular. Anyone who disagrees with you that government is oppressive is statist, so they definitionally don’t think government is too oppressive.
          Not a lot of supporters of the USSR-style of government around here.

          1. Plenty of advocates of going in that direction without any clear explanation of why we’d stop short of that end.

            1. Plenty of examples of countries with stronger government than ours who have managed to stop short of Soviet Russia.

              And remember, we’re a Republic. Historically the issue with Republics falling is cult of personality populism, not some policy ratchet.

          2. Of course you disagree. Of course you don’t recognize yourself.

            Addicts can stop any time they want. They just don’t want to.

            1. Just declaring I’m inherently wrong and you’re right is not a great argument.

              Care to try for something more substantive?

              1. Nope. You like government telling [other] people what to do, I don’t. You pretend there are limits to what you’d want, but your comments here say otherwise. You want more government than exists now, so any theoretical limit you might pretend exists is just a figure of speech, a campaign promise of no significance. I want less. One of those fits the addict, one doesn’t.

                1. I don’t like government telling people what to do; I think sometimes government is the best means to the ends of prosperity, liberty, and equality I think makes for the best society.

                  You, on the other hand, are taking some axiomatic view of yours as the pillar of the universe, and condemning anyone who disagrees with you as a wannabe Stalin arguing in bad faith.

                  I’m surprised you even bother to post here, what with your zealotry-so-I-win button making thinking so easy for you.

                  1. Your first paragraph contradicts itself.

                    Your second paragraphs starts out partially correct; I do have it as axiomatic that government is incompetent and that markets and individuals do far better. But you are such a thorough-going statist that anything less is just anarchy, which you probably equate to chaos.

                    1. No, my first paragraph contradicts your axiom that government is anti-freedom. Again, that’s a lame I-win button that makes your thinking easier, but also makes your political opinions facile.

                      Your broad statement shows that you haven’t reasoned yourself into your point of view; it’s just part of your individual belief system. Markets have their failures, as does government. For you to believe that government is always incompetent and that individuals are always better is a level of extremism that’s silly.

                      And then you go into how my opinions arise due to my corrupt worldview, neatly keeping your from engaging with them at all. As I said, facile thinking.

  3. This is an attempt to make an end run around the First Amendment.

    1. I’d reply that you’re wrong because the ABA is voluntary, professional organization not tied to any government, but I’m sure you know that already.

      1. He probably knows that the ABA is a lot more entangled with government than you want to pretend, actually.

        1. Brett, it isn’t even that — I’ve seen the APA do something similar, and that’s what the Jennifer Keeton case was all about. Here’s the ADF’s summary: https://centerforacademicfreedom.org/cases/keeton-v-anderson-wiley/

          Both the APA and ABA hold “gatekeeper” access to their respective professions in that having graduated from an accredited program is a mandatory prerequisite to obtaining a state-required license. What Augusta (GA) State University argued was that they were mandated to violate Keeton’s First Amd rights as a condition of being accredited by the APA, and hence she wasn’t entitled to First Amd protections (both Language & Religion).

          Leviticus 18:22 reads “Thou shalt not lie with mankind, as with womankind: it is abomination.” Leviticus is in the Jewish Torah, and the Koran is even more adamant on this point. So anyone who is a serious student of the Christian, Jewish, or Muslim faiths is not able to *affirm* homosexualty. This doesn’t mean gay-bashing or otherwise being mean to anyone who is LGBTQ — all Keeton did was say that if she had a gay client who was having problems with his gay lover, she’d find him another counselor whom she thought could better help him.

          And Keeton was kicked out because she refused to engage in therapy to convert her to a gay-affirming person.

          1. Both the APA and ABA hold “gatekeeper” access to their respective professions in that having graduated from an accredited program is a mandatory prerequisite to obtaining a state-required license.

            Nope.

            1. OK, a state may let graduates of a nonABAaccredited law school sit for their bar exam, but there isn’t reciprocity. And this does not apply to voodoo science.

      2. And state bar regs are written by the Bar Reg Fairy in Pixie Dust, I suppose.

        The APA regs are an even better example — Massachusetts law simply cites any violation of the APA ethical guidelines as constituting grounds for revocation of a MA-issued Voodoo Science license.

        1. Would it then not be Massachussets law that woud be unconstitutional, rather than the APA rules ? These private professional bodies can do what they want – it’s the adoption of their policies into laws and licenses that presents the 1A problem.

          And a good healthy test case confirming this might discourage legislatures from making the law effectively amendable by private parties.

          Perhaps if, say, Alabama were to subcontract its ethical rules for licensed abortionists to some suitably reactionary institute, the liberal Justices might come onside.

          1. Lee, I comingled two distinctly different things.

            The first was the APA’s requirements for accredition of an academic psych program. This is actually twofold — without it your graduates can’t get state licenses, but the thing that drives me (as an educator) up the wall is that all of their research and literature is restricted to themselves, i.e. students in an approved program and persons holding licenses — with a legal obligation not to share with anyone who isn’t one or the other.

            So they come in with some (IMHO) truly asinine educational program and when I request access to the basic evaluative data that would be public were I doing it, they say “sorry, you aren’t a licensed psychologist, you can’t see it. And this is stuff like the basic effectiveness data on programs that are being publicly funded — the basic “did the kids learn more or less” along with the research methods and methodology where all kinds of stuff can be hidden.

            Case in point, a friend pursuing the same degree as me (EdD) but in a psychology program could evaluate a teaching program in a local school. Brilliant, but he knew next to nothing about K-12 and when I read his dissertation (which they can’t hide), it was clear to me that he wasn’t asking the right questions. (He’d never been a classroom teacher — how could he possibly know to ask the things that a classroom teacher (such as I) would instinctively ask.)

            So the people who actually know something about pedagogy aren’t allowed to ask questions about it. Kinda like if lawyers couldn’t question engineers on how they determined the load carrying ability of a bridge — which you can do. Maybe not understand it, but they gotta cite all the specs, and show all their math. It’s not just “in my professional opinion, that bridge should have held and I won’t tell you why.”

            The second is taking ethical codes and adopting them as state ethical codes. That’s different because these are more specific things like sleeping with a client, stuff that isn’t as controversial because they’ve (a) already screened out the big stuff with the accreditation requirements and (b) they really don’t want to fight their battles here where people — able and willing to sue — actually might.

            Lawyers aside, if Alabama were to criminalize the performance of an abortion in it’s statutes, there would be MDs able and ready to sue. However, if it made it impossible for pro choice med students to become MDs, they don’t really have grounds for a suit.

            Read the Keeton decision and you will understand.

          2. 2nd Try:
            “Would it then not be Massachussets law that woud be unconstitutional, rather than the APA rules ? These private professional bodies can do what they want – it’s the adoption of their policies into laws and licenses that presents the 1A problem. “

            I thought the same thing in the Keaton case — that while the APA could declare whatever it damn well pleased, the State of Georgia was violating her rights by mandating her graduation from an APA-approved program. But she still lost.

            Admittedly, they played both ends against the middle — UGA’s academic freedom rights which apparently included the right to confirm to the censorship of a non-state actor, while that was played against the other end of prerequisite to entering a profession.

            But she lost….

  4. They should just call it what it is. A speech code designed to get people who engage in “wrongthink.”

    1. Not even that Jimmy — what it’s designed to do is prevent those who might defend “wrongthink” from entering the profession and thus denying legal representation to an entire segment of the population.

      It’s not about lawyers as much as about their clients — and ensuring that their legal rights are not protected/defended. That’s what is so scary about it.

      1. For 30 years, the radical left’s attitude is “they shall die” — that everyone currently practice will eventually retire and/or die.

        Hence if you can control entry to the profession, over time, you can control the profession without ever having to actually fight the battles within the profession itself. In other words, if you exclude free speech absolutists, the type of person who would bring something like the Stokie Nazi case, over time there will not be any licensed attorney to bring such a case.

        It doesn’t even matter who your judges are if you have no lawyers willing to bring unpopular cases. And that’s what’s so scary about the Millennials who think “good/bad speech” rather than “protected speech.”

        Look at it another way — if only pro-lifers were permitted to become lawyers, if there were an absolute Keagan-style litmus test, the _Roe_ decision would become moot when the current generation of lawyers left the field. States could ignore it with total impunity if there were no lawyers to bring suits in response.

        Remember that all the pro-choice folk never got a chance to become a lawyer, and any lawyer who became pro-choice later would be disbarred. So the pro-choice folks wouldn’t have access to the courts.

        Hence while attempting to preclude the current generation of lawyers from advocating pro-choice causes would be impossible, if you were able to preclude persons holding those values from entry into the profession, you can make the profession pro-life without ever having to defeat the pro-choicers.

        NB: The converse of this is also true. I’m trying to demonstrate a point.

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