The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, the Texas Bar had an eight-hour marathon meeting. One of the key issues was whether to refer ABA Model Rule 8.4(g) to the Discipline and Client Attorney Assistance Program Committee (DCAAP) Committee. Over 60 bar members spoke about the rule. (I was one of them). Over a divided vote, the motion passed. Now the Committee will consider 8.4(g). They will also consider possible revisions to Texas Disciplinary Rule 5.08.
Perhaps the Committee will recognize that 8.4(g) is unconstitutional and abandon the effort. The more likely outcome: the Committee tries to transmogrify 8.4(g) to make it look palatable, but it will still suffer from constitutional defects.
My remarks from this morning preview what will happen if the Bar adopts this rule:
Thank you for the opportunity to speak. My name is Josh Blackman. I am a constitutional law professor at the South Texas College of Law Houston, but I am here in my capacity as a member of the bar. Today, I would like to briefly discuss the proposal to refer ABA Model Rule 8.4(g) to a committee for study.
In the current moment, I appreciate the Bar's desire to take steps to promote racial and other types of equality. But moving forward with ABA Model Rule 8.4(g) would fail to achieve those goals. Specifically, the adoption of this controversial rule would be challenged immediately in court. I suspect the same plaintiffs who challenged the integrated bar will line up for an encore suit. And the Texas Attorney General, who ruled the proposal unconstitutional, has hinted he will file suit as well. If a single district court enters a preliminary injunction, the validity of the rule would remain in doubt for years. And the bar may unwittingly set a precedent in the Fifth Circuit or in the Texas Supreme Court. Throughout this entire time, the bar would be enjoined from taking the important steps that it needs to take. And in the process, acrimony will build among members of the bar about this divisive rule.
My suggestion: take the easier route. Consider a narrowly tailored rule that addresses the specific problems attorneys face in the legal practice in Texas. Don't overshoot, and rubber-stamp an ABA-drafted, burdensome restriction on the freedom of speech and the free exercise of religion. Thank you for your consideration.
You can watch the video at 36:44.
Update: Here is the Bar's official account of the motion:
In a procedural vote, the board referred ABA Model Rule 8.4(g) to a board committee for study, an action that was requested by State Bar members at the July 27 meeting. The board's Discipline and Client Attorney Assistance Program (DCAAP) Committee will study the model rule—along with the existing Rule 5.08 of the Texas Disciplinary Rules of Professional Conduct and the public input submitted before and during the board meeting—and report back to the board its recommendations, if any, at a future meeting.