The Volokh Conspiracy
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Idaho Supreme Court Rejects Proposed Attorney Speech Code
Resolution 21-01, modeled on the American Bar Association's proposed Rule 8.4(g), would allow lawyers to be punished for "engag[ing] in … harassment," defined as "in representing a client or operating or managing a law practice or in the course and scope of employment in a law practice, engag[ing] in conduct that the lawyer knows or reasonably should know is harassment":
Harassment is derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. To constitute a violation of this subsection, the harassment must be severe or pervasive enough to create an environment that is intimidating or hostile to a reasonable person. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules.
Comment: … Harassment includes sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal, written, or physical conduct of a sexual nature. Factors to be considered to determine whether conduct rises to the level of harassment … include: the frequency of the harassing conduct; its severity; whether it is threatening or humiliating, or a mere offensive utterance; whether it is harmful to another person; or whether it unreasonably interferes with conduct related to the practice of law. Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of harassment …. The substantive law of … anti-harassment statutes and case law may guide application of [this provision].
"In representing a client or operating or managing a law practice or in the course and scope of employment in a law practice" does not include participation in bar association, business, or social activities outside the context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.
But in Friday's In re Idaho State Bar Resolution 21-01, the court concluded the proposal was unconstitutional:
Resolution 21-01 favors one viewpoint over another (tolerance for a protected class of persons versus intolerance for a protected class of persons); therefore, it is also a viewpoint-based restriction. The resolution is not limited to speech directed at a person based on that person's protected status, but instead prohibits speech because the speech is derogatory or demeaning and the speech is based on a specified protected status….
For example, an attorney could speak favorably about same-sex marriage without running afoul of the Bar's rule, but another attorney who speaks disparagingly about same-sex marriage could potentially be engaging in misconduct. Resolution 21-01 applies to "derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status" that is so severe and pervasive as to create an environment that is intimidating or hostile to a reasonable person….
Resolution 21-01 covers attorney speech "in representing a client or operating or managing a law practice or in the course and scope of employment in a law practice." In an attempt to narrow the Resolution, the drafters included Comment 4: "'In representing a client or operating or managing a law practice or in the course and scope of employment in a law practice' does not include participation in bar association, business, or social activities outside the context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice." This comment is vague at best because it defines the situations in which the rule would not apply as the absence of the situations where the rule would apply, rather than attempting to define, for example, what is involved in representing a client and actively operating or engaging in the practice of law.
Listing vague exceptions of participation in bar association, business, or social activities outside of the employment context does not narrowly define the situations where the rule applies, and therefore, clearly implicates a substantial amount of protected speech. As written, the resolution's prohibitions would extend to participation in bar association, business, or social activities if that participation occurred in the course, operation, or management of a law practice. It is difficult to conceive of a law firm partner or attorney who participates in bar association activities and business that are not in connection with their law practice. The same is true of law partners and associates who take clients to dinners and participate in social activities to build business for their firm.
Additionally, many legal employers encourage their employees who are lawyers to attend these activities as part of their employment, to help develop business for the firm. As a result, comment 4 appears to confirm that a large swath of otherwise protected bar association, business, and social conduct would fall within the Resolution's prohibitions. The Resolution's failure to provide a narrow scope of applicability could result in punishment of protected speech, which is fatal to the validity of the Resolution in its current form.
Furthermore, the Resolution "delegate[s] standardless discretionary power" to the ISB's disciplinary bodies. By not clearly defining what speech amounts to "intimidating" or "hostile," the Bar's disciplinary bodies will have unbridled discretion to determine whether an attorney has committed misconduct under the proposed Rule 8.4(g). Although the Resolution provides parameters that help to describe harassment, these parameters do not adequately define what conduct is "intimidating" or "hostile" and therefore rises to the level of misconduct proscribed by the rule. We cannot conclude that these parameters are a sufficient framework to define harassment. As such, the Resolution is overbroad, and therefore, it is invalid under the First Amendment….
Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct…. Would a law firm's holiday party fall "outside the context of … the course and scope of employment in a law practice[?]" What about a business dinner that included some of the firm's partners but not all of them? What about attendance at the Idaho State Bar Annual Meeting or Bar section meetings when required by one's law firm? These hypotheticals merely offer a small example of the gray area created by the Resolution regarding what type of attorney conduct and speech would rise to the level of professional misconduct.
Finally, … [w]hile there is evidence that the Resolution's drafters sought to curb discrimination and harassment identified in the survey conducted by the Bar, such an intent cannot be used to justify the possible chilling of free speech. The Resolution covers a substantial amount of protected speech. By the same token, under a vagueness analysis, protected speech could be chilled due to both the Resolution's expansive scope and its undefined terms….
