The Volokh Conspiracy
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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.
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 .
This hedge is not very reassuring.
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.
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.
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 '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.