by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association
Rule 8.4(g) Upheld
ABA Model Rule 8.4(g) has lived a brief but tortured life. Many states, including Arizona, declined to adopt it for a myriad of reasons, including being vague, overbroad, unnecessary, easy to abuse and violating the 1st Amendment. However, last year, after being struck down by a federal court, the Third Circuit upheld the rule.
ER 8.4, in Arizona and most jurisdictions, specifies, among other things, that it is “professional misconduct for a lawyer to … engage in conduct that is prejudicial to the administration of justice.” The comments to the rule clarify that professional misconduct includes “knowingly manifest[ing] by words or conduct, bias or prejudice” based on certain protected characteristics. The rule only applies “in the scope of representing a client.”
In 2016, the ABA adopted Model Rule 8.4(g). The rule provides that it is “professional misconduct for a lawyer to … engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” “Harassment” means “conduct that is intended to intimidate, denigrate or show hostility or aversion toward a person on any of the bases listed in paragraph (g).”
The ABA’s changes moved the discrimination/prejudice provisions from the rule’s comments to the text. They also expand the rule’s scope from conduct “in the scope of representing a client” to conduct “related to the practice of law.” This means the rule applies at law firm dinners, CLEs, speeches to legal organizations/conferences, and bar association events.
The ABA justified the change based on “a need for a cultural shift in understanding the inherent integrity of people.” If the ABA concluded that there is an epidemic of CLEs where the people’s inherent integrity was misunderstood, it did not say so or how it reached that conclusion. Everyone seemed fine at my last CLE, although people’s inherent integrity does not often come up in the context of payment and performance bond claims.
Contrary to popular belief, lawyers have the same 1st Amendment rights as anyone else, unless they are participating in the judicial process or representing a client. That is why Rule 8.4 refers to “conduct” and does not purport to regulate attorney speech. It is only where the proper functioning of the judicial process provides the required compelling government interest that the content of attorney speech may be regulated. That is why the only rule regulating the content of a lawyer’s extrajudicial statements, ER 3.6, applies to those statements that might affect a judicial proceeding.
Central to the debate over Model Rule 8.4(g) is the possibility that attorneys who speak on controversial subjects that touch on the issues or people identified in the rule (i.e., immigration, gender identity issues, LGBTQ+ rights, race conscious or race blind policies) could find themselves at odds with a state bar that believes the attorney’s statements have denigrated or expressed an aversion to groups that the rule seeks to protect, which qualifies as “harassment” under the rule. This concern is not trivial given the rule’s wide scope, the number of topics and groups it covers, and the fact that the rule was not written to address specified problems in lawyer conduct.
After Pennsylvania adopted Model Rule 8.4(g), Zachary Greenberg, a Pennsylvania lawyer who fancies himself a 1st Amendment activist and speaker on controversial matters, challenged the rule as viewpoint discrimination and an impermissible regulation of attorney speech. Mr. Greenberg cited what he called politically motivated complaints of “bias” against speakers on legal issues, including a bar complaint against a federal circuit judge for a speech given at the University of Pennsylvania Law School.
A federal district court in Pennsylvania agreed. The court held that the rule exceeded the Pennsylvania bar’s authority, regulated speech and not just conduct, and sought to remove certain ideas or perspectives from the broader debate. Notably, when the judge questioned the Pennsylvania bar’s attorney about the specific issue the rule sought to address, the attorney conceded that the rule was “somewhat of a prophylactic.” The district court held that Pennsylvania’s professed interest in improving public trust and confidence in the legal system was too “unfocused” and “amorphous” to qualify as compelling, particularly since the rule reaches well beyond matters involving the courts.
The Third Circuit reversed for lack of standing. The court accepted the Pennsylvania bar’s representation that it interpreted Rule 8.4(g) “as encompassing only conduct which targets individuals by harassing or discriminating against an identifiable person,” and “does not interpret Rule 8.4(g) as prohibiting general discussions of case law or ‘controversial’ positions or ideas.” Because Mr. Greenberg failed to establish a credible threat of enforcement, he lacked the injury-in-fact required for Article III standing.
The Third Circuit’s standing analysis may be correct. But it had the added benefit of allowing the court to avoid the merits of the district court’s ruling. It is easy to baldly assert that Rule 8.4(g) only applies to conduct, not speech. However, it is much more difficult to explain how prohibiting “denigrat[ing] or show[ing] hostility or aversion toward a person on any of the [enumerated] bases” does not necessarily regulate speech and particular viewpoints.
The elephant in the room is this country’s long and ignominious tradition of using professional licensure to silence political dissidents. For over 100 years, the legal profession has been at the vanguard of employing these tactics.
Lawyers who advocated for civil disobedience to conscription in World War I were disciplined. Lawyers who represented communists and civil rights activists in the 1950s and 60s were disciplined so often that members of those groups could not find counsel. Lawyers with the temerity to represent prisoners in Guantanamo Bay were sanctioned and disbarred. The practice continues today with lawyers who have been censured or disbarred for statements made to the media or on social media regarding the 2020 presidential election, despite having no connection to judicial proceedings, and resulting from complaints filed by political organizations with the express purpose of denying legal counsel to their political opponents.
Courts and state bars always justify their complicity in these tactics on the same basis that Pennsylvania defended Model Rule 8.4(g), which is a professed concern for public trust and confidence in the legal profession.
Lawyers are often rabble rousers and leaders of the opposition. They can be horribly inconvenient to the powers that be. The temptation to shut them up, and the value of the power to do so, is simply too great for a rule like Model Rule 8.4(g) to not be abused. In concept, the distinction between conduct and speech is valid. In practice, history suggests that the ability of state bars to toe that line is questionable at best.
But the beauty of federalism is that it allows sister states like New Mexico, Vermont and Pennsylvania, the only states to enact Model Rule 8.4(g) without significantly narrowing its scope, to walk the plank while the rest of us get to watch. For those of you licensed in American Samoa, the Northern Mariana Islands and the U.S. Virgin Islands (jurisdictions where the Maricopa Lawyer is especially popular), Model Rule 8.4(g) also applies. It should not be long before we see the results.
About Joseph A. Brophy
Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jhkmlaw.com.
The original article appeared in the April 2024 issue of Maricopa Lawyer and can be viewed here:
https://jhkmlaw.com/wp-content/uploads/2024/04/MARICOPA-LAWYER-APRIL.pdf
