The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New York is considering adopting variants of ABA Model Rule 8.4(g). I submitted a comment with Professors Eugene Volokh and Nadine Strossen. Here is the introduction:
Currently, there are two proposals to revise New York Rule 8.4(g). First, on March 19, 2021, the Administrative Board of the New York Unified Court System requested public comment on a proposal to adopt ABA Model Rule 8.4(g), with certain modifications, to replace New York Rule 8.4(g). Second, on April 16, 2021, the New York State Bar Association's Committee on Standards of Attorney Conduct ("COSAC") sought public comment to replace New York Rule 8.4(g) with a rule it claims "differ[s] significantly from ABA Model Rule 8.4(g)."
Recently, the U.S. District Court for the Eastern District of Pennsylvania declared unconstitutional Pennsylvania's version of the ABA Model Rule. The Pennsylvania Bar chose not to appeal that ruling. That decision casts serious doubt on the proposals from the Administrative Board and COSAC. We do not think either proposal will pass constitutional muster.
In this joint statement, we will compare and contrast ABA Model Rule 8.4(g), the Administrative Board's proposal, and the COSAC proposal across nine dimensions: (1) the scope of the rule, (2) the locations where "the practice of law" can occur, (3) the list of prohibited activities, (4) the definition of "discrimination," (5) the definition of "harassment," (6) the protected classes, (7) the mens rea requirement, (8) diversity and inclusion, and (9) protection for speech. We will conclude with our recommendations. We also include the text of the proposals in the appendix.
And the conclusion:
It is our opinion that the Administrative Board proposal would be declared unconstitutional for the same reasons that the Pennsylvania rule was declared unconstitutional: it imposes an unconstitutional form of viewpoint discrimination. The COSAC proposal is an improvement, but still permits the imposition of liability for "derogatory or demeaning verbal conduct." We do not think this element is valid under Matal v. Tam (2017).
We recognize that the New York courts, and the attorneys of New York, are eager to take some form of action to address perceived problems in the profession. But the way to resolve these issues is not through adopting an unconstitutional rule. If adopted, Rule 8.4(g) will lead to years of litigation and acrimony. A better course is to adopt a more modest rule on firm constitutional grounding. For example, the rule could only extend to formal "discrimination," rather than the nebulous term of "harassment." The rule could be limited to "the practice of law" rather than ancillary conduct. The rule would not extend to social functions. These suggestions could address some of the perceived need for a change, without raising difficult constitutional questions. But in its present form, both proposals will likely meet the same unconstitutional fate.