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