By Mallory Holt
Sparking intense controversy, in 2016 the American Bar Association (“ABA”) amended Model Rule 8.4 to add paragraph (g), making it professional misconduct 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.” The Comments to Model Rule 8.4 make clear that paragraph (g) can be violated by either verbal or physical conduct and broadly extends to any conduct related to the practice of law, including bar association, business, or social activities in connection with the practice of law.
Model Rule 8.4(g) was met with widespread criticism based on First Amendment concerns, and most states have declined to adopt its language.i When California amended its Rules of Professional Conduct in 2018, the new California Rules of Professional Conduct (“CRPC”), Rule 8.4 adopted the language of Model Rule 8.4(a)-(f), while omitting Model Rule 8.4(g) and adding a Comment that the “rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” (CRPC, rule 8.4, Comment [6].)
Following the ABA’s adoption of Model Rule 8.4(g), the United States Supreme Court rendered two decisions emboldening unconstitutionality claims: Matal v. Tamii and National Institute of Family and Life Advocates v. Becerra.iii
In Matal, the Court held a federal statute unconstitutional on its face, because it allowed for punishment of “disparaging” speech. More particularly, the Court found a provision of federal law allowing government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons was unconstitutional, because “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
In NIFLA, the Court held government restrictions on lawyers’ professional speech are subject to strict scrutiny, because they are content-based restrictions which “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” The Court noted it “has not recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by ‘professionals.’”
In July of 2020, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 493 (hereinafter “Opinion”), clarifying the purpose, scope, and application of Model Rule 8.4(g). One section of the Opinion is specifically devoted to addressing First Amendment concerns. (Opinion, at § II(C).) The Opinion suggests that courts have consistently upheld professional conduct rules similar to Model Rule 8.4(g) against First Amendment challenge and that the rule “promotes a well-established state interest by prohibiting conduct that reflects adversely on the profession and diminishes the public’s confidence in the legal system and its trust in lawyers.” (Opinion, at p. 11.)
Shortly after the Opinion issued, the ABA’s position on the constitutionality of Model Rule 8.4(g) took another blow when the United States District Court for the Eastern District of Pennsylvania decided the matter of Greenberg v. Haggerty.iv
In Greenberg, a pre-enforcement challenge was asserted to the constitutionality of amendments to Pennsylvania Rules of Professional Conduct, Rule 8.4, adding the language of Model Rule 8.4(g) and related comments (“Amendments”). The plaintiff, attorney Zachary Greenberg, argued the Amendments constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The Court agreed, issuing a preliminary injunction blocking enforcement of the Amendments.
Citing NIFLA, the Greenberg Court reasoned that while less protection is afforded for professional speech in circumstances involving attorneys’ commercial speech and professional conduct incidentally involving speech, the Amendments do not fall into either category and the speech it attempts to regulate is entitled to the full protection of the First Amendment.
The Court went on to conclude the Amendments constitute viewpoint discrimination, noting it prohibited attorneys from “by words . . . manifest[ing] bias or prejudice,” but would not restrict attorneys’ ability to express tolerance or respect on the same issues. Finding the Amendments violated the First Amendment, the Greenberg Court noted:
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to decide what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance.v
While an appeal was initially filed to the Greenberg decision, the appeal was dismissed in March pursuant to stipulation by the parties.vi
In the wake of Greenberg, similar challenges can likely be expected in the seven states that have adopted a version of Model Rule 8.4(g)vii, and it remains to be seen whether the ABA will reconsider its stance on defending the constitutionality of Model Rule 8.4(g).