The regulation of attorney conduct, particularly regarding speech, continues to be a focal point of debate in North America. This controversy centers on the scope of professional conduct rules intended to address discrimination and harassment, often leading to concerns about potential infringements upon free speech principles.
The American Bar Association’s Model Rule 8.4(g)
In 2016, the American Bar Association (ABA) adopted a recommendation for Model Rule 8.4(g), which defines “professional misconduct” to include:
“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.”
This provision encompasses verbal “conduct” and has drawn criticism for its breadth. Legal scholars, such as UCLA law professor Eugene Volokh, have contended that the rule’s wide and vague scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.” Critics argue that the rule could expose lawyers to charges of professional misconduct for expressing or sharing opinions, humor, or graphics that they “should have known would make a listener uncomfortable” based on membership in one of the protected classes.
The phrase “related to the practice of law” has been interpreted broadly, potentially covering a vast array of activities beyond direct client representation. These activities, as detailed in April comments on the rule, include:
- Presenting Continuing Legal Education (CLE) courses.
- Participating in panel discussions on controversial political, religious, and social viewpoints.
- Teaching law school classes as faculty, adjunct faculty, or guest lecturers.
- Authoring law review articles, op-eds, blog posts, or tweets.
- Giving media interviews.
- Serving on the board of a religious congregation, school, or college.
- Providing pro bono legal advice to nonprofits or serving at legal aid clinics.
- Lobbying, testifying before a legislative body, or writing comment letters to government agencies.
- Serving on the board of a fraternity or sorority, volunteering for political parties, or advocating through social justice organizations.
While some existing state codes prohibit bias and harassment, they are generally drafted with more limited applicability. In Maine, for instance, prior disciplinary rules required missteps to have been committed knowingly, in the course of representing a client, and in a manner prejudicial to the administration of justice—three criteria that served as safeguards against overbreadth.
Since its proposal, Model Rule 8.4(g) has encountered significant resistance across the United States. According to October comments, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal.” Furthermore, “The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas.” Conversely, only Vermont has adopted the model rule in its entirety.
Maine’s highest court has since adopted a version of the rule, though it incorporates several narrowing amendments. Specifically, the Maine version:
- Defines “the practice of law” in a less expansive manner, excluding some purely social activities.
- Removes “socioeconomic status” and “marital status” from the list of protected classes.
- Attempts to define the specific types of speech deemed to constitute bias or harassment.
Despite these changes, critics still find the definition’s contours unclear and argue that the rule remains significantly broader than the standards approved by the U.S. Supreme Court regarding harassment law and speech liability in workplace and university settings.
The Situation in Ontario, Canada
Parallel debates have occurred in Canada, where the Law Society of Ontario (LSO) previously enacted rules that went further than the ABA’s proposal. The LSO required all lawyers to draft a mandatory personal Statement of Principles (SOP) avowing a dedication to diversity, equality, and inclusion. The LSO Convocation rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”
However, this mandatory requirement provoked substantial opposition from the LSO membership. A campaign led by attorney Lisa Bildy and others successfully elected 22 of its supporters to the 40 lawyer seats among the governing benchers (governors) at the Law Society. Though these newly elected officials do not hold a majority due to the other seats reserved for lay benchers and paralegals, the election results conveyed an unambiguous message regarding the membership’s objection to the SOP.
In light of this change and a determined campaign of opposition, the Law Society of Ontario’s governing Convocation is scheduled to meet on June 27 to begin considering whether to repeal, render optional, modify, or retain the Statement of Principles requirements. The outcome of the LSO meeting and subsequent actions deserve close scrutiny by those concerned about the rise of speech codes and mandatory expressive requirements within the legal and other professions.
