After 8-Hour Meeting, Divided Texas Bar Refers ABA Model Rule 8.4(g) to Committee

The Disciplinary Committee will consider ABA Model Rule 8.4(g), as well as revisions to an old Texas Rule

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.

Comments

[Rev. Arthur L. Kirkland]

I don't think cloaking bigotry in superstition is going to work much longer, not even in Texas.

How many years before Texas is comfortably Democratic? I'm hearing six to eight.

[kkoshkin]

You are an odd bird. And angry. An angry and odd bird.

[ScottK]

There are many angry people here, but the Rev is not one of them. The Rev is resolute and direct.

Surely the professor’s argument was more sophisticated than “My friends will sue your sorry asses all the way to number 1 First Street.” Poor editing I suppose.

[Rev. Arthur L. Kirkland]

You mistake derision and disdain for anger. Anger is for losers. My side has won.

You also seem to mistake a stale, white, male, right-wing blog for the mainstream. My views are not odd -- they are the prevailing views i modern America. The Volokh Conspiracy's fans are the fringe in the reality-based world.

Other than that, though, great comment!

[JimB 2]

I am a bit unsure as to the precise conduct that gives rise to this rule. “Harassment or discrimination” casts a broad net. I see obvious First Amendment problems. Plus ... Assuming that it is unprofessional conduct with respect to the enumerated classes, why would it be permissible in other cases?

Jim Brock
03045000

[Dr. Ed 2]

Because some people are more equal than others.

[Noscitur a sociis]

I am a constitutional law professor at the South Texas College of Law Houston

In the future, you may not want to destroy your credibility at the outset like this....

[Rev. Arthur L. Kirkland]

That a hard-wired Federalist Society darling, vouched for by the Volokh Conspirators, had to settle for a job at South Texas College of Law is illuminative (concerning the respect for movement conservatism in mainstream legal academia) and heartening (for those who prefer the liberal-libertarian mainstream to the Federalist-Heritage world).

So I don't mind when Prof. Blackman starts his remarks by identifying that affiliation.

[Beldar]

Given what I have seen, and continue to see, day-in and day-out over the 40 years I've been in practice in Texas, the existing rule is entirely asperational and symbolic anyway.

The proposed new rule would be even harder to interpret or enforce.

I am unaware of any occasion on which any lawyer has been disciplined for violation of the existing rule. But most disciplinary actions taken by the Bar are private, so I wouldn't have heard about them unless through someone involved. My guess is that if the existing rule has been enforced at all, that's largely been as an afterthought or add-on, such as: "We find Lawyer Doe has stolen from his client, failed to keep him timely advised, bribed a bailiff, and, oh, by the way, manifested by words and conduct a bias based on sexual orientation."