Rules of Professional Conduct and Rules Governing the Utah State Bar – Comment Period Closed August 1, 2020

I add my voice to the growing chorus of opposition to proposed changes to the Rules of Professional Conduct, particularly Rule 8.4. The reasons for my opposition are already outlined above by others’ comments, so I will be brief. I believe that the proposed rules will have a chilling effect on First Amendment rights and will impact the robust debate that should exist in the marketplace of ideas. There is good reason that most states that have considered these amendments have rejected them. Please do not impose these ill advised restrictions.

I agree with most of the other comments in opposition to the proposed changes to 8.4 and 14-301. This is especially impactful to sole practitioners and small firms who employ a very small team. Just as allowed by law, the sole practitioner or small firm owner should be able to choose who she is comfortable with hiring and working with daily one-on-one, without worrying about being disciplined by the bar. If an attorney prefers to have a female assistant (or a male assistant), she should be able to do so without fear of bar discipline. Or if an attorney works in a conservative area with older, conservative clients and is uncomfortable with a transgender individual being the face of the office, the attorney should have that ability to choose without fear of bar discipline.

Please reject these proposed rules.

Reducing discrimination is important. In particular, for those of us who have benefited from so many privileges, reducing discrimination and its effects should be a personal and professional focus. That said, I oppose the adoption of the proposed revisions to Rule 8.4 of the Rules of Professional Conduct, as well as the proposed changes to Rule 14 301 of the Standards of Civility and Professionalism. Among a host of concerns with the proposed amendments, tying discrimination to state and federal statutes, as may be amended from time-to-time, creates the potential for serious unintended applications of the Rules in the future. An aspirational approach, rather than a mandatory approach, may be more suitable in this instance.

(Part 2 of 3)
2. The Proposed Amendments Prohibit Constitutionally Protected Speech.
Some proponents of the proposed amendments might contend that the amendments prohibit only conduct, not speech, and that any speech that is prohibited is speech that is merely incidental to the prohibited conduct. For that reason – they might claim – the amendments do not violate the First Amendment free speech rights of lawyers.
But that is incorrect. The proposed amendments – particularly the proposed amendments to the Rules of Civility and Professionalism, which are, by incorporation, explicitly made a part of proposed Rule 8.04(h) – prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities;.” from making “written submissions or oral presentations [] [that] disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law;” from “expressing scorn, superiority, or disrespect;” and from “manifesting bigotry, discrimination, or prejudice toward any person in the legal process.” All these provisions prohibit pure speech.
For that reason, the proposed amendments do not prohibit conduct that incidentally involves speech. Instead, the amendments prohibit speech that incidentally involves professional conduct. See Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harvard J. Law & Pub. Policy 173, 247 (2019).
A relatively recent event in Minnesota illustrates the point. In May of 2018 the Minnesota Lavender Bar Association (“MLBA”) – “a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies, promoting fairness and equality for the LGBT community within the legal industry and for the Minnesota community” – objected to an accredited Continuing Legal Education presentation entitled “Understanding and Responding to the Transgender Moment/St. Paul,” which was co-sponsored by a Roman Catholic law school and addressed transgender issues from a Roman Catholic perspective. The MLBA complained that the CLE – which was pure speech – was “discriminatory and transphobic,” “encourages bias by arguing against the identities [of transgender people],” was contrary to the bar’s diversity efforts, and constituted “harassing behavior” under Rule 8.4(g) of the Model Rules of Professional Conduct. The MLBA further characterized the presentation as “transphobic rhetoric” and stated that “Discrimination is not legal education.” Minn. Lavender Bar Ass’n, https://gumroad.com/mlba (last visited Apr. 2, 2019). As a result of the MLBA’s complaint, the CLE accrediting body of the Minnesota Bar revoked its CLE accreditation of the presentation – reportedly the first time such retroactive revocation of CLE credit had ever occurred in Minnesota. See Barbara L. Jones, CLE credit revoked, Minnesota Lawyer (May 28, 2018).
In this real-life example, the complained of behavior consisted of pure speech, was alleged to constitute harassment and discrimination – and was punished by the state. And the same result could occur under the amendments proposed here, because the amendments prohibit speech that could be considered by some as “hostile, demeaning, humiliating, or discriminatory” “in law-related activities,” specifically including CLE’s and other Bar events.
Thus, it is clear that the proposed amendments do, in fact, prohibit lawyer speech. And, as is discussed below, much of that speech is constitutionally protected. By prohibiting and threatening to punish attorneys for engaging in constitutionally protected speech, the proposed amendments violate attorneys’ free speech rights.

3. The Proposed Amendments Are Unconstitutionally Vague.
Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. And the lack of such notice in a law that regulates expression raises special First Amendment concerns because of its obvious chilling effect on free speech. For that reason, courts apply a more stringent vagueness test when a regulation interferes with the right of free speech. Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010).
Vague laws present several due process problems. First, such laws may trap the innocent by not providing fair warning. Second, vague laws delegate policy matters to state agents for enforcement on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. And third, such laws lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
(a) The Terms “Hostile, Demeaning, Humiliating, Discriminatory, Disparag[ing], “Expressing Scorn, Superiority, or Disrespect,” or “Manifesting Bigotry, Discrimination, or Prejudice” are all Unconstitutionally Vague.
The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process.” However, these terms are not defined in the proposed amendments and, therefore, do not give lawyers sufficient guidance as to what behavior is being proscribed.
For example, the word “hostile” simply means “antagonistic,” “not friendly, warm, or generous,” “not hospitable.” https://www.dictionary.com/browse/hostile# (last visited 7/7/2020). But lawyers commonly engage in speech and conduct that others could consider antagonistic, unfriendly, ungenerous, and inhospitable. Sending a demand letter or threatening to file or filing a lawsuit against someone are themselves inherently antagonistic and unfriendly acts. And lawyers oftentimes engage in behavior that is inherently “antagonistic” or “unfriendly” in depositions, settlement negotiations, and even transactional negotiations. So how is an attorney to know what sorts of speech and conduct are prohibited by the amendments and which are not? Under Title VII, a “hostile” work environment is prohibited, but in the Title VII employment context prohibited hostility does not mean a mere offensive utterance. Faragher v. City of Boca Raton, 524U.S. 775, 777-78(1998). Under the proposed amendments, though, no such limiting definitions are provided to assist lawyers in determining which behaviors violate the amendments and which do not. Therefore, attorneys are left to guess – at their peril – whether their behavior, expressed in an inherently adversarial judicial system, may violate the proposed amendments.
Similarly, the word “demeaning” simply means “debasing” or “degrading.” http://www.dictionary.com/browse/demeaning# (last visited 7/7/2020). But, again, lawyers – operating in the American adversarial system of justice – commonly engage in speech and conduct that others could consider to be debasing or degrading. So how is an attorney to know what sort of speech and conduct is prohibited by the amendments and which is not?
The word “humiliating” means “lowering the pride, self-respect, or dignity of a person.” http://www.dictionary.com/browse/humiliating# (last visited 7/7/2020). But, again, lawyers commonly engage in speech and conduct that others would probably consider humiliating. Is it not humiliating to every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sort of speech and conduct is prohibited by the amendments and which is not?
The term “discriminatory” is also unconstitutionally vague. One might contend that the word “discriminatory” is widely used and easily understood. And it is certainly true that many statutes and ordinances prohibit discrimination, in a variety of contexts. But it is also true that such statutes and ordinances do not – as does the proposed amendments – merely prohibit “discrimination” and leave it at that. Rather, they spell out what specific behavior constitutes discrimination. For example, the federal Fair Housing Act provides a detailed description of what sorts of acts, specifically, are prohibited under the Act in the context of housing. See 42 U.S.C. § 3604. Similarly, Title VII specifies what sorts of acts constitute discrimination under the statute in the context of employment. See 42 U.S.C. § 2000e-2. Although proposed Rule8.4(g), which is limited to the employment context, would address this category of discrimination and theoretically be limited by it, proposed Rule 8.4(h) would not because proposed Rule 8.4(h) applies to attorney speech and conduct generally and outside the employment context. Proposed Rule 8.4(h) simply prohibits “discriminatory conduct in law-related activities.”– thereby leaving to the attorney’s imagination what sorts of speech and behavior might be encompassed in that proscription.
The word “disparaging” means “to speak of or treat slightingly; depreciate; belittle” or “to bring reproach or discredit upon” or “lower the estimation of.” http://www.dictionary.com/browse/disparage# (last visited 7/7/2020). But, again, is it not disparaging for every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sorts of speech and conduct are prohibited by the amendments and which are not? Would some not consider a lawyer who – at a CLE addressing transgender issues – questions whether men can be women or women be men, to be depreciating or belittling transgender individuals and, therefore, in violation of the proposed amendments?
To “scorn” means “to treat or regard with contempt or disdain http://www.dictionary.com/browse/scorn# (last visited 7/7/2020) and the word “disrespect” means to be discourteous or rude. http://www.dictionary.com/browse/disrespect# (last visited 7/7/2020). Under the proposed amendments, would an attorney who, at a law firm dinner party, expresses her Roman Catholic religious belief that homosexual behavior is fundamentally disordered, be in violation of the rule, since some would consider such a belief as disrespecting homosexual individuals and regarding them with contempt or disdain?
(b) The Term “Harm” is Unconstitutionally Vague.
Proposed Rule 8.4(h) prohibits attorneys from violating Rule 14-301 of the Standards of Professionalism and Civility – which prohibits lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process” – if such violations “harm the lawyer’s client or another lawyer’s client” (our emphasis).
However, the term “harm” is unconstitutionally vague because attorneys cannot determine with any degree of reasonable certainty what speech and conduct may “harm” the lawyer’s client or another lawyer’s client under the Rule. Indeed, the word “harm” encompasses a wide range of injury, from “physical injury or mental damage” to “hurt” to “moral injury; evil; [and] wrong.” Harm, Dictionary.com, http://www.dictionary.com/browse/harm (last visited July 7, 2020). So “harm” to a client, whether one’s own or another attorney’s, can encompass an almost limitless range of allegedly injurious effects on others. Mental damage, for example, could easily be interpreted to include real, imagined, or even feigned, emotional distress at being exposed to expression someone finds offensive or upsetting. And a whole host of expressions could subjectively considered “morally injurious,” “evil,” or “wrong.”
Remember that speech does not lose its constitutional protection just because it is “harmful.” See, e.g., Snyder v. Phelps, 562 U.S. 443, 458 (2011) (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995) (stating that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (noting that an interest in protecting bystanders from feeling offended or angry is not sufficient to justify a ban on expression); Boos v. Barry, 485 U.S. 312, 321 (1988) (striking down a ban on picketing near embassies where the purpose was to protect the emotions of those who reacted to the picket signs’ message). See also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (stating that “new categories of unprotected speech may not be added to the list [of unprotected speech – such as obscenity, incitement, and fighting words] by a legislature that concludes certain speech is too harmful to be tolerated”) (emphasis added).
Indeed, the U.S. Supreme Court has stated that the idea that free speech protection should be subject to a balancing test that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test, is a “startling and dangerous” proposition. Id. at 792; see also United States v. Stevens, 559 U.S. 460, 470 (2010) (holding that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”)
(c) The Phrase “Law-Related Activities” is Unconstitutionally Vague.
The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” And the proposed amendments go on to define “law-related activities” to “include, but [are] not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.
It hardly need be said, though, that what conduct is “law-related” and what conduct is not, is vague and subject to reasonable dispute.
The phrase is vague, first, because the term “law-related” need not be related to the practice of law, or even the professional activities of lawyers, at all.
Considering some hypothetical situations brings the problem into focus. It is clear that the proposed prohibitions would apply to comments made by an attorney while attending a law firm retirement party for a law firm co-worker, because the proposed rule expressly applies to firm parties. But would it also include comments made while the attorneys are walking to their vehicles after the party has ended? Would it apply to comments one attorney makes to another while car-pooling to or from work? Would it include comments an attorney makes while teaching a religious liberty law class at the attorney’s church? Or sitting on his church’s governing board, where he is sometimes asked for his professionally informed opinion on some matter before the board? Or when attending an alumni function at the law school the attorney attended? Or when publishing a letter to the editor of a newspaper when the author is identified therein as a lawyer? Or, for that matter, in any behavior in which the actor is identified as being a lawyer? The answers to these inquiries are far from self-evident.
And it is not just our opinion that the phrase “law-related activities” is unconstitutionally vague. The Chair of the ABA Policy & Implementation Committee, which is charged with advocating for the Model Rules of Professional Conduct, while serving on an ABA CLE panel discussing Model Rule 8.4(g), was asked what the phrase “related to the practice of law” in Model Rule 8.f(g) meant? In response, he stated “I don’t have an answer for you.” “It is extraordinarily broad.” “I don’t know where it begins or where it ends.” Model Rule 8.4 – Update, Discussion, and Best Practices in a #MeToo World, August 2, 2018. And the phrase “law-related activities” is even broader than “related to the practice of law” because the phrase “law-related activities” is not limited to attorney speech and conduct in “the practice of law.”
Because a lawyer cannot, with any degree of reasonable certainty, determine what behavior of an attorney is “law-related” and what is not, the proposed amendments are unconstitutionally vague.

If attorneys face professional discipline for engaging in certain proscribed behavior, they are entitled to know, with reasonable precision, what behavior is being proscribed, and should not be left to speculate what the proscription might encompass. Anything less is a deprivation of due process.
Because of the vagueness of many of the proposed amendments’ essential terms, the proposed amendments are unconstitutional.

4. The Proposed Amendments Are Unconstitutionally Overbroad.
Even if a law is clear and precise – thereby avoiding a vagueness challenge – it may nevertheless be unconstitutionally overbroad if it prohibits constitutionally protected speech.
Overbroad laws – like vague laws – deter protected activity. The crucial question in determining whether a law is unconstitutionally overbroad is whether the law sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned, 408 U.S. at 114-15.
Although some of the speech the proposed amendments prohibit might arguably be unprotected – such as speech that actually and seriously prejudices the administration of justice by undermining a specific judicial proceeding, or speech that would actually and clearly render an attorney unfit to practice law – the proposed amendments would also sweep within their prohibitions lawyer speech that is clearly protected by the First Amendment, such as speech that might be considered, at least by some, as constituting “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process,” but that would not prejudice the administration of justice nor render the attorney unfit to practice law. DeJohn v. Temple Univ., 537 F.3d 301 (2008) (holding that a University Policy on Sexual Harassment that prohibited “all forms of sexual harassment . . . including expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment” was unconstitutionally overbroad on its face).
Speech is not unprotected merely because it is harmful, derogatory, demeaning, or even discriminatory or harassing. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001) (holding that there is no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs; harassing or discriminatory speech implicate First Amendment protections; there is no categorical rule divesting “harassing” speech of First Amendment protection).
Indeed, offensive, disagreeable, and even hurtful speech is exactly the sort of speech the First Amendment protects. Snyder, 562 U.S. at 458 (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley, 515 U.S. at 574 (noting that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); see also Johnson, 491 U.S. at 414 (stating that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); see also Matal v. Tam, 137 Sup. Ct. 1744 (2017) (stating that the government’s attempt to prevent speech expressing ideas that offend strikes at the heart of the First Amendment) and Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019)(observing that “regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be”).
In fact, courts have specifically found that terms such as “derogatory” and “demeaning” are unconstitutionally overbroad. Hinton, 633 F.Supp. 1023 (holding that the term “derogatory information” is unconstitutionally overbroad); Summit Bank, 206 Cal. App. 4th 669 (finding that a statute defining the offense of making or transmitting an untrue “derogatory” statement about a bank is unconstitutionally overbroad because it brushes constitutionally protected speech within its reach and thereby creates an unnecessary risk of chilling free speech); see also Saxe, 240 F.3d 200 (holding that a school anti-harassment policy that banned any unwelcome verbal conduct which offends an individual because of actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics is facially unconstitutional because it is overbroad).
The broad reach of the proposed amendments are well illustrated by the fact that the amendments specifically extend their reach to “firm parties.” This broad reach is the same problem presented by ABA Model Rule 8.4(g). Senior Ethics Counsel Lisa Panahi and Ethics Counsel Ann Ching of the Arizona State Bar, in their January 2017 article “Rooting Out Bias in the Legal Profession: The Path to ABA Model Rule 8.4(g),” in the Arizona Attorney, stated that an attorney could be professionally disciplined under Model Rule 8.4(g)’s prohibition on discriminatory or harassing conduct in business or social activities “related to the practice of law” for telling an offensive joke at a law firm dinner party. The late Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, Ronald Rotunda, provided another example of the broad reach of broad professional rules like the one being proposed here. Writing of ABA Model Rule 8.4(g), he stated: “If one lawyer tells another, at the water cooler or a bar association meeting on tax reform, ‘I abhor the idle rich. We should raise capital gains taxes,’ he has just violated the ABA rule by manifesting bias based on socioeconomic status.” Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Legal Memorandum No. 191 at 4, The Heritage Foundation (Oct. 6, 2016). (The same result would ensue under the amendments proposed here because, although the protected classes under the proposed amendments do not, like ABA Model Rule 8.4(g), include “socioeconomic status,” the proposed amendments prohibit lawyers from engaging in any “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities” without limiting such discrimination to those particular protected classes.)
But the speech in both these examples would clearly be constitutionally protected. The fact that such constitutionally protected speech would violate the proposed Rule demonstrates that the Rule is unconstitutionally overbroad.
Indeed, regardless of whether any attorney is ultimately prosecuted under the proposed amendments for engaging in protected speech, the mere possibility that a lawyer could be disciplined for engaging in such speech would, in and of itself, chill lawyers’ speech – which is precisely what the overbreadth doctrine is designed to prevent. Massachusetts v. Oakes, 491 U.S. 576, 584 (1989) (noting that overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression.).
Therefore, because the proposed amendments will prohibit a broad swath of protected speech and would chill lawyers’ speech, the amendments would not pass constitutional muster.

5. The Proposed Amendments Will Constitute Unconstitutional Content-Based Speech Restrictions.
In proscribing speech that is hostile, demeaning, humiliating, or discriminatory toward members of certain designated classes, the proposed Rule will constitute an unconstitutional content-based speech restriction. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (explaining that government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.); see also Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456 (S.D.N.Y. 2012) (holding that an ordinance prohibiting demeaning advertisements only on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation is an unconstitutional content-based violation of the First Amendment).
Indeed, the U.S. Supreme Court recently reiterated this principle in a case that is directly relevant when considering the constitutional infirmities of the proposed amendments. In Tam, the Court found that a Lanham Act provision – prohibiting the registration of trademarks that may “disparage” or bring a person “into contempt or disrepute” – facially unconstitutional, because such a disparagement provision – even when applied to a racially derogatory term – “. . . offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 Sup. Ct. 1744. In a concurring opinion joined by four Justices, Justice Kennedy described the constitutional infirmity of the disparagement provision as “viewpoint discrimination” – “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” Id. at 1766. The problem, he pointed out, was that, under the disparagement provision, “an applicant may register a positive or benign [trade]mark but not a derogatory one” and that “This is the essence of viewpoint discrimination.” Id. Likewise, under the proposed Rule here, attorneys may engage in positive or benign speech with regard to the protected classes, but not derogatory, demeaning, or harmful speech. Under the Supreme Court’s Tam decision, this is the essence of viewpoint discrimination, and presumptively unconstitutional.
The late Professor Rotunda provided a concrete example of how the professional rules like the amendments proposed here may constitute an unconstitutional content-based speech restriction, stating that “At another bar meeting dealing with proposals to curb police excessiveness, assume that one lawyer says, ‘Black lives matter.’ Another responds, ‘Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime.’ A third says, ‘All lives matter.’ Finally, another lawyer says (perhaps for comic relief), ‘To make a proper martini, olives matter.’ The first lawyer is in the clear; all of the others risk discipline.” Rotunda, supra.
Under the proposed amendments, the content of a lawyer’s speech will determine whether or not the lawyer has or has not violated the rule. For example, a lawyer who speaks against same-sex marriage may be in violation of the rule for engaging in speech that some consider to be discriminatory based on sexual orientation or marital status, while a lawyer who speaks in favor of same-sex marriage would not be. Or as the Minnesota case discussed above illustrates, one may speak favorably about transgender issues, but not unfavorably. These are classic examples of unconstitutional viewpoint-based speech restrictions. See R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (holding that the government may not regulate speech based on hostility – or favoritism – towards the underlying message expressed). In R.A.V., the Supreme Court struck down, as facially unconstitutional, the city of St. Paul’s Bias-Motivated Crime Ordinance because it applied only to fighting words that insulted or provoked violence “on the basis of race, color, creed, religion or gender,” whereas expressed hostility on the basis of other bases were not covered. Id. In striking down the Ordinance, the Court stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at 390. That is precisely what the proposed Rule does. For that reason, commentators have described Model Rule 8.4(g) as a speech codes for lawyers.
For those who would deny that the proposed amendments create an attorney speech code, we need only point them to Indiana, a state that has adopted a black letter non-discrimination rule. In In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Ind. 2010), an Indiana attorney was professionally disciplined under Indiana’s Rule 8.4(g) for merely asking someone if they were “gay.” And in In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Ind. 2010), an attorney had his license suspended for applying a racially derogatory term to himself. In both cases, the attorneys were professionally disciplined merely for using certain disfavored speech.
Because it constitutes an unconstitutional speech code for lawyers, the proposed amendments should be rejected.

IN THE UTAH SUPREME COURT

Request for Public Comment on ) Joint Comment in Opposition to
Proposed Amendments to Rule ) Proposed Amendments to Rule
8.04 Rules of Professional Conduct ) 8.04 Rules of Professional Conduct
and Rule 14-301 of the Standards of ) and Rule 14-301 of the Standards
Professionalism and Civility ) Professionalism and Civility

The Utah licensed attorneys listed below respectfully submit this Comment on the proposed amendments to Rule 8.04 of the Utah Rules of Professional Conduct and Rule 14-301 of the Standards of Professionalism and Civility.

I. The Proposed Amendments
It is being proposed that Rule 8.04 of the Utah Rules of Professional Conduct be amended by amending subsections (g) and (h) to the Rule so as to read as follows:
It is professional misconduct for a lawyer to:

(g) engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or

(h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

The proposed amendments would also amend the Comments to Rule 8.04 as follows:

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race; color; sex; pregnancy, child birth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion, national origin; disability; sexual orientation; gender identity; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice. The protected classes listed in this paragraph are consistent with those enumerated in the Utah Antidiscrimination Act of 1965, Utah Code Sec. 34A-5-106(1)(a) (2016), and in federal statutes and is not intended to be an exhaustive list as the statutes may be amended from time to time. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s findings that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

[4] The substantive law of antidiscrimination and anti-harassment statutes and case law governs the application of paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense. Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation, nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules. Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g). Lawyers may discuss the benefits and challenges of diversity and inclusion without violating paragraph (g). Unless otherwise prohibited by law, implementing or declining to implement initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).

[5] Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution.

[6] A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers should also be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay and their obligations under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by a lawyer of the client’s views or activities. See Rule 1.2(b).

[9] This rule differs from ABA Model Rule 8.4(g) to the extent that it changes paragraph (g), adds new paragraph (h), and modifies the comments accordingly.

Further, the proposed amendments would amend Rule 14-301 of the Standards of Professionalism and Civility as follows:

Preamble . . . Finally, the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers.

3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Neither written submissions or oral presentations shall disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law.

Lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code sec. 34A-5-106(1)(a), and federal statutes, as amended from time to time.

Comment. Lawyers should refrain from expressing scorn, superiority, or disrespect. [Unconstitutional] Legal process should not be issued merely to annoy, humiliate, intimidate, or harass. Special care should be taken to protect witnesses, especially those who are disabled or under the age of 18, from harassment or undue contention. Lawyers should refrain from acting upon or manifesting bigotry, discrimination, or prejudice toward any person in the legal process, even if a client requests it.

Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.

II. Comments

A. The Proposed Amendments, for the First Time, Incorporate The Amended Standards of Professionalism and Civility Into the Rules of Professional Conduct.
In order to fully appreciate the magnitude of the changes the proposed amendments would effect, one must note that, under the proposed amendments, violations of Utah’s Standards of Professionalism and Civility would, for the first time, constitute violations of the Rules of Professional Conduct. This is clear from two provisions of the proposed amendments.
The first pertinent provision of the proposed amendments is proposed Rule of Professional Conduct 8.04(h), which provides that It is professional misconduct for a lawyer to:(h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 [of the Standards of Professionalism and Civility] if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice. Thus, the proposed amendments directly incorporate Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h) of the Rules of Professional Conduct.
The other relevant provision is the proposed amendment to the Preamble of the Standards of Professionalism and Civility, which provides that: the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers (our emphasis).
In other words, the proposed amendment to Rule of Professional Conduct 8.04(h) expressly incorporates Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h), and the proposed amendments to the Standards of Professionalism and Civility expressly recognize that the Standards are being made a mandatory rule for lawyers under proposed Rule 8.04(h).
This is an important point because, by incorporating the proposed amendments to the Standards of Professionalism and Civility into the proposed amendments to the Rules of Professional Conduct, the advocates of the proposed amendments have proposed what appears to be a small and limited change to the face of the Rules of Professional Conduct – but have then greatly expanded that apparently small change by incorporating into the new Rule a much more expansive set of rules that share many of the constitutional and other infirmities of ABA Model Rule 8.4(g).
Hence, in analyzing the effect of the proposed amendments, one must analyze together the proposed amendments to Rule 8.04 of the Rules of Professional Conduct and the proposed amendments to Rule 14-301 of the Standards of Professionalism and Civility, because the proposed amendments render them one and the same.
For that reason, our comment on the proposed amendments to the Rules of Professional Conduct and the proposed amendments to the Standards of Professionalism and Civility will be considered together, as they must.

B. The Proposed Amendments Are Unconstitutional.
1. Attorney Speech is Constitutionally Protected.
Citizens do not surrender their First Amendment speech rights when they become attorneys, including when they are acting in their professional capacities as lawyers. NAACP v. Button, 371 U.S. 415 (1963) (holding that “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”); see also Ramsey v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 771 S.W.2d 116, 121 (Tenn. 1989) (holding that an attorney’s statements that were disrespectful and in bad taste were nevertheless protected speech and use of professional disciplinary rules to sanction the attorney would constitute a significant impairment of the attorney’s First Amendment rights, and stating that “we must ensure that lawyer discipline, as found in Rule 8 of the Rules of this Court, does not create a chilling effect on First Amendment rights.”); Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1444 (9th Cir. 1995) (stating that the substantive evil must be extremely serious and the degree of imminence must be extremely high before an attorney’s utterances can be punished under the First Amendment).
Indeed, the ABA itself has acknowledged this very principle in an amicus brief it filed in the case of Wollschlaeger. v. Governor of the State of Fla., 797 F.3d 859 (11th Cir. 2015). In its brief the ABA denied that a law regulating speech should receive less scrutiny merely because it regulates “professional speech.” “On the contrary” – the ABA stated – “much speech by . . . a lawyer . . . falls at the core of the First Amendment. The government should not, under the guise of regulating the profession, be permitted to silence a perceived ‘political agenda’ of which it disapproves. That is the central evil against which the First Amendment is designed to protect.” “Simply put” – the ABA stated – “states should not be permitted to suppress ideas of which they disapprove simply because those ideas are expressed by licensed professionals in the course of practicing their profession . . . Indeed,” – the ABA stated – “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression, and has repeatedly admonished that no new such classifications be created.”
The ABA is, of course, correct in stating that “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression.” Indeed, the U.S. Supreme Court recently reiterated this principle in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), 2018 WL 3116336, in which it devoted a part of its opinion to the subject of professional speech, stating: “[T]his Court’s precedents have long protected the First Amendment rights of professionals. For example, this Court has applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, . . .The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information” (internal citations omitted). 138 S. Ct. 2361, 2374. The Court concluded that it was not presented with any persuasive reason for treating professional speech as a unique category of speech that is exempt from ordinary First Amendment principles.
In short, attorneys do not surrender their constitutional rights when they enter the legal profession – including with respect to their professional speech – and the state may not violate attorneys’ constitutional rights under the guise of professional regulation.
2. The Proposed Amendments Prohibit Constitutionally Protected Speech.
Some proponents of the proposed amendments might contend that the amendments prohibit only conduct, not speech, and that any speech that is prohibited is speech that is merely incidental to the prohibited conduct. For that reason – they might claim – the amendments do not violate the First Amendment free speech rights of lawyers.
But that is incorrect. The proposed amendments – particularly the proposed amendments to the Rules of Civility and Professionalism, which are, by incorporation, explicitly made a part of proposed Rule 8.04(h) – prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities;.” from making “written submissions or oral presentations [] [that] disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law;” from “expressing scorn, superiority, or disrespect;” and from “manifesting bigotry, discrimination, or prejudice toward any person in the legal process.” All these provisions prohibit pure speech.
For that reason, the proposed amendments do not prohibit conduct that incidentally involves speech. Instead, the amendments prohibit speech that incidentally involves professional conduct. See Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harvard J. Law & Pub. Policy 173, 247 (2019).
A relatively recent event in Minnesota illustrates the point. In May of 2018 the Minnesota Lavender Bar Association (“MLBA”) – “a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies, promoting fairness and equality for the LGBT community within the legal industry and for the Minnesota community” – objected to an accredited Continuing Legal Education presentation entitled “Understanding and Responding to the Transgender Moment/St. Paul,” which was co-sponsored by a Roman Catholic law school and addressed transgender issues from a Roman Catholic perspective. The MLBA complained that the CLE – which was pure speech – was “discriminatory and transphobic,” “encourages bias by arguing against the identities [of transgender people],” was contrary to the bar’s diversity efforts, and constituted “harassing behavior” under Rule 8.4(g) of the Model Rules of Professional Conduct. The MLBA further characterized the presentation as “transphobic rhetoric” and stated that “Discrimination is not legal education.” Minn. Lavender Bar Ass’n, https://gumroad.com/mlba (last visited Apr. 2, 2019). As a result of the MLBA’s complaint, the CLE accrediting body of the Minnesota Bar revoked its CLE accreditation of the presentation – reportedly the first time such retroactive revocation of CLE credit had ever occurred in Minnesota. See Barbara L. Jones, CLE credit revoked, Minnesota Lawyer (May 28, 2018).
In this real-life example, the complained of behavior consisted of pure speech, was alleged to constitute harassment and discrimination – and was punished by the state. And the same result could occur under the amendments proposed here, because the amendments prohibit speech that could be considered by some as “hostile, demeaning, humiliating, or discriminatory” “in law-related activities,” specifically including CLE’s and other Bar events.
Thus, it is clear that the proposed amendments do, in fact, prohibit lawyer speech. And, as is discussed below, much of that speech is constitutionally protected. By prohibiting and threatening to punish attorneys for engaging in constitutionally protected speech, the proposed amendments violate attorneys’ free speech rights.

3. The Proposed Amendments Are Unconstitutionally Vague.
Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. And the lack of such notice in a law that regulates expression raises special First Amendment concerns because of its obvious chilling effect on free speech. For that reason, courts apply a more stringent vagueness test when a regulation interferes with the right of free speech. Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010).
Vague laws present several due process problems. First, such laws may trap the innocent by not providing fair warning. Second, vague laws delegate policy matters to state agents for enforcement on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. And third, such laws lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
(a) The Terms “Hostile, Demeaning, Humiliating, Discriminatory, Disparag[ing], “Expressing Scorn, Superiority, or Disrespect,” or “Manifesting Bigotry, Discrimination, or Prejudice” are all Unconstitutionally Vague.
The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process.” However, these terms are not defined in the proposed amendments and, therefore, do not give lawyers sufficient guidance as to what behavior is being proscribed.
For example, the word “hostile” simply means “antagonistic,” “not friendly, warm, or generous,” “not hospitable.” https://www.dictionary.com/browse/hostile# (last visited 7/7/2020). But lawyers commonly engage in speech and conduct that others could consider antagonistic, unfriendly, ungenerous, and inhospitable. Sending a demand letter or threatening to file or filing a lawsuit against someone are themselves inherently antagonistic and unfriendly acts. And lawyers oftentimes engage in behavior that is inherently “antagonistic” or “unfriendly” in depositions, settlement negotiations, and even transactional negotiations. So how is an attorney to know what sorts of speech and conduct are prohibited by the amendments and which are not? Under Title VII, a “hostile” work environment is prohibited, but in the Title VII employment context prohibited hostility does not mean a mere offensive utterance. Faragher v. City of Boca Raton, 524U.S. 775, 777-78(1998). Under the proposed amendments, though, no such limiting definitions are provided to assist lawyers in determining which behaviors violate the amendments and which do not. Therefore, attorneys are left to guess – at their peril – whether their behavior, expressed in an inherently adversarial judicial system, may violate the proposed amendments.
Similarly, the word “demeaning” simply means “debasing” or “degrading.” http://www.dictionary.com/browse/demeaning# (last visited 7/7/2020). But, again, lawyers – operating in the American adversarial system of justice – commonly engage in speech and conduct that others could consider to be debasing or degrading. So how is an attorney to know what sort of speech and conduct is prohibited by the amendments and which is not?
The word “humiliating” means “lowering the pride, self-respect, or dignity of a person.” http://www.dictionary.com/browse/humiliating# (last visited 7/7/2020). But, again, lawyers commonly engage in speech and conduct that others would probably consider humiliating. Is it not humiliating to every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sort of speech and conduct is prohibited by the amendments and which is not?
The term “discriminatory” is also unconstitutionally vague. One might contend that the word “discriminatory” is widely used and easily understood. And it is certainly true that many statutes and ordinances prohibit discrimination, in a variety of contexts. But it is also true that such statutes and ordinances do not – as does the proposed amendments – merely prohibit “discrimination” and leave it at that. Rather, they spell out what specific behavior constitutes discrimination. For example, the federal Fair Housing Act provides a detailed description of what sorts of acts, specifically, are prohibited under the Act in the context of housing. See 42 U.S.C. § 3604. Similarly, Title VII specifies what sorts of acts constitute discrimination under the statute in the context of employment. See 42 U.S.C. § 2000e-2. Although proposed Rule8.4(g), which is limited to the employment context, would address this category of discrimination and theoretically be limited by it, proposed Rule 8.4(h) would not because proposed Rule 8.4(h) applies to attorney speech and conduct generally and outside the employment context. Proposed Rule 8.4(h) simply prohibits “discriminatory conduct in law-related activities.”– thereby leaving to the attorney’s imagination what sorts of speech and behavior might be encompassed in that proscription.
The word “disparaging” means “to speak of or treat slightingly; depreciate; belittle” or “to bring reproach or discredit upon” or “lower the estimation of.” http://www.dictionary.com/browse/disparage# (last visited 7/7/2020). But, again, is it not disparaging for every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sorts of speech and conduct are prohibited by the amendments and which are not? Would some not consider a lawyer who – at a CLE addressing transgender issues – questions whether men can be women or women be men, to be depreciating or belittling transgender individuals and, therefore, in violation of the proposed amendments?
To “scorn” means “to treat or regard with contempt or disdain http://www.dictionary.com/browse/scorn# (last visited 7/7/2020) and the word “disrespect” means to be discourteous or rude. http://www.dictionary.com/browse/disrespect# (last visited 7/7/2020). Under the proposed amendments, would an attorney who, at a law firm dinner party, expresses her Roman Catholic religious belief that homosexual behavior is fundamentally disordered, be in violation of the rule, since some would consider such a belief as disrespecting homosexual individuals and regarding them with contempt or disdain?
(b) The Term “Harm” is Unconstitutionally Vague.
Proposed Rule 8.4(h) prohibits attorneys from violating Rule 14-301 of the Standards of Professionalism and Civility – which prohibits lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process” – if such violations “harm the lawyer’s client or another lawyer’s client” (our emphasis).
However, the term “harm” is unconstitutionally vague because attorneys cannot determine with any degree of reasonable certainty what speech and conduct may “harm” the lawyer’s client or another lawyer’s client under the Rule. Indeed, the word “harm” encompasses a wide range of injury, from “physical injury or mental damage” to “hurt” to “moral injury; evil; [and] wrong.” Harm, Dictionary.com, http://www.dictionary.com/browse/harm (last visited July 7, 2020). So “harm” to a client, whether one’s own or another attorney’s, can encompass an almost limitless range of allegedly injurious effects on others. Mental damage, for example, could easily be interpreted to include real, imagined, or even feigned, emotional distress at being exposed to expression someone finds offensive or upsetting. And a whole host of expressions could subjectively considered “morally injurious,” “evil,” or “wrong.”
Remember that speech does not lose its constitutional protection just because it is “harmful.” See, e.g., Snyder v. Phelps, 562 U.S. 443, 458 (2011) (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995) (stating that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (noting that an interest in protecting bystanders from feeling offended or angry is not sufficient to justify a ban on expression); Boos v. Barry, 485 U.S. 312, 321 (1988) (striking down a ban on picketing near embassies where the purpose was to protect the emotions of those who reacted to the picket signs’ message). See also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (stating that “new categories of unprotected speech may not be added to the list [of unprotected speech – such as obscenity, incitement, and fighting words] by a legislature that concludes certain speech is too harmful to be tolerated”) (emphasis added).
Indeed, the U.S. Supreme Court has stated that the idea that free speech protection should be subject to a balancing test that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test, is a “startling and dangerous” proposition. Id. at 792; see also United States v. Stevens, 559 U.S. 460, 470 (2010) (holding that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”)
(c) The Phrase “Law-Related Activities” is Unconstitutionally Vague.
The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” And the proposed amendments go on to define “law-related activities” to “include, but [are] not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.
It hardly need be said, though, that what conduct is “law-related” and what conduct is not, is vague and subject to reasonable dispute.
The phrase is vague, first, because the term “law-related” need not be related to the practice of law, or even the professional activities of lawyers, at all.
Considering some hypothetical situations brings the problem into focus. It is clear that the proposed prohibitions would apply to comments made by an attorney while attending a law firm retirement party for a law firm co-worker, because the proposed rule expressly applies to firm parties. But would it also include comments made while the attorneys are walking to their vehicles after the party has ended? Would it apply to comments one attorney makes to another while car-pooling to or from work? Would it include comments an attorney makes while teaching a religious liberty law class at the attorney’s church? Or sitting on his church’s governing board, where he is sometimes asked for his professionally informed opinion on some matter before the board? Or when attending an alumni function at the law school the attorney attended? Or when publishing a letter to the editor of a newspaper when the author is identified therein as a lawyer? Or, for that matter, in any behavior in which the actor is identified as being a lawyer? The answers to these inquiries are far from self-evident.
And it is not just our opinion that the phrase “law-related activities” is unconstitutionally vague. The Chair of the ABA Policy & Implementation Committee, which is charged with advocating for the Model Rules of Professional Conduct, while serving on an ABA CLE panel discussing Model Rule 8.4(g), was asked what the phrase “related to the practice of law” in Model Rule 8.f(g) meant? In response, he stated “I don’t have an answer for you.” “It is extraordinarily broad.” “I don’t know where it begins or where it ends.” Model Rule 8.4 – Update, Discussion, and Best Practices in a #MeToo World, August 2, 2018. And the phrase “law-related activities” is even broader than “related to the practice of law” because the phrase “law-related activities” is not limited to attorney speech and conduct in “the practice of law.”
Because a lawyer cannot, with any degree of reasonable certainty, determine what behavior of an attorney is “law-related” and what is not, the proposed amendments are unconstitutionally vague.

If attorneys face professional discipline for engaging in certain proscribed behavior, they are entitled to know, with reasonable precision, what behavior is being proscribed, and should not be left to speculate what the proscription might encompass. Anything less is a deprivation of due process.
Because of the vagueness of many of the proposed amendments’ essential terms, the proposed amendments are unconstitutional.

4. The Proposed Amendments Are Unconstitutionally Overbroad.
Even if a law is clear and precise – thereby avoiding a vagueness challenge – it may nevertheless be unconstitutionally overbroad if it prohibits constitutionally protected speech.
Overbroad laws – like vague laws – deter protected activity. The crucial question in determining whether a law is unconstitutionally overbroad is whether the law sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned, 408 U.S. at 114-15.
Although some of the speech the proposed amendments prohibit might arguably be unprotected – such as speech that actually and seriously prejudices the administration of justice by undermining a specific judicial proceeding, or speech that would actually and clearly render an attorney unfit to practice law – the proposed amendments would also sweep within their prohibitions lawyer speech that is clearly protected by the First Amendment, such as speech that might be considered, at least by some, as constituting “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process,” but that would not prejudice the administration of justice nor render the attorney unfit to practice law. DeJohn v. Temple Univ., 537 F.3d 301 (2008) (holding that a University Policy on Sexual Harassment that prohibited “all forms of sexual harassment . . . including expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment” was unconstitutionally overbroad on its face).
Speech is not unprotected merely because it is harmful, derogatory, demeaning, or even discriminatory or harassing. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001) (holding that there is no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs; harassing or discriminatory speech implicate First Amendment protections; there is no categorical rule divesting “harassing” speech of First Amendment protection).
Indeed, offensive, disagreeable, and even hurtful speech is exactly the sort of speech the First Amendment protects. Snyder, 562 U.S. at 458 (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley, 515 U.S. at 574 (noting that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); see also Johnson, 491 U.S. at 414 (stating that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); see also Matal v. Tam, 137 Sup. Ct. 1744 (2017) (stating that the government’s attempt to prevent speech expressing ideas that offend strikes at the heart of the First Amendment) and Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019)(observing that “regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be”).
In fact, courts have specifically found that terms such as “derogatory” and “demeaning” are unconstitutionally overbroad. Hinton, 633 F.Supp. 1023 (holding that the term “derogatory information” is unconstitutionally overbroad); Summit Bank, 206 Cal. App. 4th 669 (finding that a statute defining the offense of making or transmitting an untrue “derogatory” statement about a bank is unconstitutionally overbroad because it brushes constitutionally protected speech within its reach and thereby creates an unnecessary risk of chilling free speech); see also Saxe, 240 F.3d 200 (holding that a school anti-harassment policy that banned any unwelcome verbal conduct which offends an individual because of actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics is facially unconstitutional because it is overbroad).
The broad reach of the proposed amendments are well illustrated by the fact that the amendments specifically extend their reach to “firm parties.” This broad reach is the same problem presented by ABA Model Rule 8.4(g). Senior Ethics Counsel Lisa Panahi and Ethics Counsel Ann Ching of the Arizona State Bar, in their January 2017 article “Rooting Out Bias in the Legal Profession: The Path to ABA Model Rule 8.4(g),” in the Arizona Attorney, stated that an attorney could be professionally disciplined under Model Rule 8.4(g)’s prohibition on discriminatory or harassing conduct in business or social activities “related to the practice of law” for telling an offensive joke at a law firm dinner party. The late Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, Ronald Rotunda, provided another example of the broad reach of broad professional rules like the one being proposed here. Writing of ABA Model Rule 8.4(g), he stated: “If one lawyer tells another, at the water cooler or a bar association meeting on tax reform, ‘I abhor the idle rich. We should raise capital gains taxes,’ he has just violated the ABA rule by manifesting bias based on socioeconomic status.” Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Legal Memorandum No. 191 at 4, The Heritage Foundation (Oct. 6, 2016). (The same result would ensue under the amendments proposed here because, although the protected classes under the proposed amendments do not, like ABA Model Rule 8.4(g), include “socioeconomic status,” the proposed amendments prohibit lawyers from engaging in any “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities” without limiting such discrimination to those particular protected classes.)
But the speech in both these examples would clearly be constitutionally protected. The fact that such constitutionally protected speech would violate the proposed Rule demonstrates that the Rule is unconstitutionally overbroad.
Indeed, regardless of whether any attorney is ultimately prosecuted under the proposed amendments for engaging in protected speech, the mere possibility that a lawyer could be disciplined for engaging in such speech would, in and of itself, chill lawyers’ speech – which is precisely what the overbreadth doctrine is designed to prevent. Massachusetts v. Oakes, 491 U.S. 576, 584 (1989) (noting that overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression.).
Therefore, because the proposed amendments will prohibit a broad swath of protected speech and would chill lawyers’ speech, the amendments would not pass constitutional muster.

5. The Proposed Amendments Will Constitute Unconstitutional Content-Based Speech Restrictions.
In proscribing speech that is hostile, demeaning, humiliating, or discriminatory toward members of certain designated classes, the proposed Rule will constitute an unconstitutional content-based speech restriction. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (explaining that government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.); see also Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456 (S.D.N.Y. 2012) (holding that an ordinance prohibiting demeaning advertisements only on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation is an unconstitutional content-based violation of the First Amendment).
Indeed, the U.S. Supreme Court recently reiterated this principle in a case that is directly relevant when considering the constitutional infirmities of the proposed amendments. In Tam, the Court found that a Lanham Act provision – prohibiting the registration of trademarks that may “disparage” or bring a person “into contempt or disrepute” – facially unconstitutional, because such a disparagement provision – even when applied to a racially derogatory term – “. . . offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 Sup. Ct. 1744. In a concurring opinion joined by four Justices, Justice Kennedy described the constitutional infirmity of the disparagement provision as “viewpoint discrimination” – “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” Id. at 1766. The problem, he pointed out, was that, under the disparagement provision, “an applicant may register a positive or benign [trade]mark but not a derogatory one” and that “This is the essence of viewpoint discrimination.” Id. Likewise, under the proposed Rule here, attorneys may engage in positive or benign speech with regard to the protected classes, but not derogatory, demeaning, or harmful speech. Under the Supreme Court’s Tam decision, this is the essence of viewpoint discrimination, and presumptively unconstitutional.
The late Professor Rotunda provided a concrete example of how the professional rules like the amendments proposed here may constitute an unconstitutional content-based speech restriction, stating that “At another bar meeting dealing with proposals to curb police excessiveness, assume that one lawyer says, ‘Black lives matter.’ Another responds, ‘Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime.’ A third says, ‘All lives matter.’ Finally, another lawyer says (perhaps for comic relief), ‘To make a proper martini, olives matter.’ The first lawyer is in the clear; all of the others risk discipline.” Rotunda, supra.
Under the proposed amendments, the content of a lawyer’s speech will determine whether or not the lawyer has or has not violated the rule. For example, a lawyer who speaks against same-sex marriage may be in violation of the rule for engaging in speech that some consider to be discriminatory based on sexual orientation or marital status, while a lawyer who speaks in favor of same-sex marriage would not be. Or as the Minnesota case discussed above illustrates, one may speak favorably about transgender issues, but not unfavorably. These are classic examples of unconstitutional viewpoint-based speech restrictions. See R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (holding that the government may not regulate speech based on hostility – or favoritism – towards the underlying message expressed). In R.A.V., the Supreme Court struck down, as facially unconstitutional, the city of St. Paul’s Bias-Motivated Crime Ordinance because it applied only to fighting words that insulted or provoked violence “on the basis of race, color, creed, religion or gender,” whereas expressed hostility on the basis of other bases were not covered. Id. In striking down the Ordinance, the Court stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at 390. That is precisely what the proposed Rule does. For that reason, commentators have described Model Rule 8.4(g) as a speech codes for lawyers.
For those who would deny that the proposed amendments create an attorney speech code, we need only point them to Indiana, a state that has adopted a black letter non-discrimination rule. In In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Ind. 2010), an Indiana attorney was professionally disciplined under Indiana’s Rule 8.4(g) for merely asking someone if they were “gay.” And in In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Ind. 2010), an attorney had his license suspended for applying a racially derogatory term to himself. In both cases, the attorneys were professionally disciplined merely for using certain disfavored speech.
Because it constitutes an unconstitutional speech code for lawyers, the proposed amendments should be rejected.

6. The Proposed Amendments Will Violate Attorneys’ Free Exercise of Religion and Free Association Rights.
The proposed amendments will also violate attorneys’ constitutional right of free religious exercise because the amendments prohibit religious expression if such expression could be considered hostile, demeaning, humiliating, or discriminatory.
The ACLU of New Hampshire opposed a similar rule – considered but not adopted – in that state, noting correctly that such rules threaten religious liberty because “one person’s religious tenet could be another person’s manifestation of bias.” American Civil Liberties Union of New Hampshire, Letter to Advisory Committee on Rules, New Hampshire Supreme Court (May 31, 2018).
So, for example, the proposed amendments would prohibit attorneys from engaging in “bigotry” and “prejudice.” But “bigotry” means a “stubborn and complete intolerance of any creed, belief, or opinion that differs from one’s own.” http://www.dictionary.com/browse/bigotry.# (last visited 7/9/2020) and “prejudice” means “unreasonable feelings, opinions, or attitudes, especially of a hostile nature, regarding an ethnic, social, or religious group.” http:/www.dictionary.com/browse/prejudice# (last visited 7/9/2020). But lawyers of faith may very well have religiously informed beliefs that, to others, might appear intolerant or hostile. The proposed amendments would professionally condemn such beliefs.
As an illustration of this, the late Professor Rotunda posited the example of Catholic attorneys who are members of the St. Thomas More Society, an organization of Catholic lawyers and judges. If the St. Thomas More Society should host a CLE program in which members discuss and, based on Catholic teaching, voice objection to the Supreme Court’s same-sex marriage rulings, Professor Rotunda explained that those attorneys may be in violation of the rule because they have engaged in conduct related to the practice of law that could be considered discrimination based on sexual orientation. In fact, Professor Rotunda pointed out that an attorney might be in violation of the rule merely for being a member of such an organization. Rotunda, supra at 4-5. The fact that the proposed amendments may prohibit such speech or membership indicates that the proposed amendments will be unconstitutional.
To those who might deny the proposed amendments could or would be applied in that way, one need only note the above-referenced action of the CLE accrediting authorities in Minnesota upon the Minnesota Lavender Bar Association’s complaint that a CLE co-sponsored by a Roman Catholic law school, discussing transgender issues from a Roman Catholic perspective, constituted “harassment” under ABA Model Rule 8.4(g), stating that the religiously based discussion constituted “transphobic rhetoric” and “discrimination.” In essence, that case stands for the proposition that the prohibition of “harassment” and “discrimination” as embodied in professional conduct rules, such as the one proposed here in Utah, will apply to and prohibit religious speech – speech that expresses a religious tenet of some, but to others is viewed as discrimination or harassment.
Religiously based legal organizations have consistently opposed professional conduct rules like the one being considered here in Utah on the ground that such rules threaten religious liberty. Those groups include the Catholic Bar Association – which has adopted a resolution stating that Model Rule 8.4(g) is not only unconstitutional, but that it is “incompatible with Catholic teaching and the obligations of Catholic lawyers” – as well as the Christian Legal Society. Both organizations have cause for concern because, as Professor Rotunda presciently warned, merely being members of those organizations would violate rules like the amendments being proposed here. How so? Because both organizations could be considered “law related activities” and both limit their membership based on religion. The Christian Legal Society requires its members to subscribe to a Christian statement of faith. The Catholic Bar Association requires its members to be practicing Roman Catholics. Therefore, both legal organizations “discriminate” on the basis of religion in a law-related activity– something explicitly prohibited under the terms of the proposed amendments. The proposed amendments would, essentially, destroy both organizations.
Because the proposed amendments will violate attorneys’ Free Exercise (and Free Association) rights, they should be rejected.

7. The Proposed Amendments Will Result In The Suppression of Politically Incorrect Speech While Protecting Politically Correct Speech.
Under a literal reading of the proposed amendments, a law firm’s race or sex-based affirmative action hiring practices would constitute a violation because the proposed Rule 8.4(h) makes clear that it is professional misconduct for a lawyer in any law related activity to discriminate on the basis of race or sex. Therefore, any hiring or other employment practices that favor applicants or employees on the basis of either of those characteristics are forbidden.
But does anyone really believe that a lawyer will ever be prosecuted for favoring women or racial minorities in hiring or promotion decisions, undertaken in order to increase diversity in the legal profession? Of course not. In fact, discrimination for those purposes will actually be favored.
Indeed, the proposed Comment [4] to the proposed Rule 8.4(g) makes this practice, of protecting favored speech and suppressing disfavored speech, explicit because Comment [4] to the Rule contains an express exception for implementing initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, providing that such are not violations of paragraph (g).
So, if an attorney engages in discriminatory conduct that furthers a politically correct interest, the disciplinary authority will find that the discrimination is undertaken to promote diversity or inclusion, or to serve an underserved population – and for that reason does not violate the Rule. But if an attorney engages in discriminatory conduct that furthers a politically incorrect interest, the state will prosecute that attorney for violating the Rule. And because the terms “hostile, demeaning, humiliating, or discriminatory” are vague and overbroad, professional disciplinary authorities will be able to interpret those terms in ways that result in selective prosecution of politically incorrect or disfavored speech, while protecting politically correct or favored speech.
This phenomenon has already been observed in other similar contexts. For example, a Civil Rights Commission in Colorado prosecuted a Christian baker for declining to bake a wedding cake for a same-sex couple, but refused to prosecute three other bakers who refused to bake a cake for a Christian, finding that the first constituted illegal discrimination but that the second did not. The reason underlying this disparate treatment was obvious – in the first the complaining party was a member of a politically favored class, while in the second the complaining party was a member of a disfavored one. The U.S. Supreme Court condemned that unequal treatment, stating that it constituted a “clear and impermissible hostility toward the religious beliefs” of the baker the Commission selectively chose to prosecute. Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018).
These exceptions also render the proposed amendments unconstitutional because – by prohibiting only disfavored discriminatory messages, while allowing favored ones – the proposed amendments create a viewpoint-based speech restriction. See R.A.V., 505 U.S. 377.
No rule of professional conduct should punish certain viewpoints while protecting and advancing others. In fact, to do so would be unconstitutional.

8. Assurances That the Proposed Amendments Will Not Be Applied in an Unconstitutional Manner Does Not Cure the Amendments’ Constitutional Infirmities.
Proposed Comment [5] to Rule 8.04 provides that: Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution. This provision was apparently added in order to address the concern that, although the proposed amendments could be applied in an unconstitutional manner, they will not be – and to assuage attorneys’ concerns about the proposed amendments’ constitutional infirmities. However, such a “savings clause” is ineffective to cure the proposed amendments’ constitutional infirmities.
First, proponents of the proposed amendments do not have the authority to speak on behalf of a state’s professional disciplinary authorities. Proponents of the amendments cannot say how the disciplinary authorities will or will not interpret or apply the proposed amendments.
And second, this very argument was made and rejected in Stevens, supra. There, in a case challenging the constitutionality of a statute criminalizing certain depictions of animal cruelty, the U.S. Supreme Court addressed the government’s claim that the statute was not unconstitutionally overbroad because the government would interpret the statute in a restricted manner so as to reach only “extreme” acts of animal cruelty, and that the government would not bring an action under the statute for anything less. In response, the high court pointed out that “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” The court pointed out the danger in putting faith in government representations of prosecutorial restraint, and stated that “The Government’s assurance that it will apply § 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” Id. at 480.
In other words, far from curing its constitutional defects, representations such as that provided in the proposed Comment [5] of the proposed amendments – that the amendments will not be applied so as to violate the Constitution – constitute indirect admissions that the proposed amendments are, in fact, constitutionally infirm.
In arguing that the proposed Rule will not be applied unconstitutionally, proponents may also point to the Rule’s provision that “Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). But that provision does not cure the defects either.
It does not cure the defects, first, because the cited provision is circular. In order to qualify as “legitimate” the advice or advocacy must, of course, be consistent with the Rules. But in order to be consistent with the Rules (in particular with proposed Rule 8.4(h) itself, incorporating the Rules of Professionalism and Civility), the advice or advocacy cannot be “hostile, demeaning, humiliating, or discriminatory.” In other words, under the proposed Rule, advice or advocacy that could be considered to constitute hostile, demeaning, humiliating, or discriminatory speech or conduct can, by definition, never constitute legitimate advocacy because hostile, demeaning, humiliating, or discriminatory advice or advocacy is inconsistent with proposed Rule 8.4(h) itself.
Further, by stating that the Rule will not prohibit “legitimate advocacy” the proposed Rule – for the first time – creates the concept of illegitimate advocacy. Advocating for clients is the very essence of what lawyers do. If the proposed Rule is adopted, however, an attorney will need to worry whether her advocacy might be considered “illegitimate” and, therefore, a violation of professional ethics. And having to worry about that will chill the lawyer’s speech and interfere with the attorney’s ability to provide her client with zealous representation.
Finally, who will determine whether an attorney’s advocacy is legitimate or illegitimate? The disciplinary authorities, of course, will make that determination, in their unfettered discretion, after the fact and, potentially, on political or ideological grounds.

C. The Proposed Amendments Will Invade The Historically Recognized Right And Duty Of Attorneys To Exercise Professional Autonomy In Choosing Whether To Engage In Legal Representation.
If the proposed amendments are adopted, attorneys will be subject to discipline for acting in accordance with their professional and moral judgment when making decisions about whether to accept, reject, or withdraw from certain cases – because, under the proposed amendments, attorneys will not only be forced to take cases or clients they might have otherwise declined, they will be forced to take cases or clients the Rules of Professional Conduct forbid them to take.
1. Proposed Rule 8.4(h) Provides No Exception For Attorney Client Selection Decisions
In countering this contention, proponents of the amendments will undoubtedly point to Comment [4] of the proposed amendments, which provides that: “[4] Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation.” However, this provision applies, on its face, only to proposed Rule 8.4(g) – not proposed Rule 8.4(h) – and proposed Rule 8.4(g) applies only to “unlawful, discriminatory or retaliatory employment practice[s] under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act” (our emphasis). But neither of those statues would even apply to an attorney’s client selection decisions because the relationship between a lawyer and his or her clients does not constitute an employment relationship under either statute.
Proposed Rule 8.4(h), on the other hand, prohibits conduct that violates Rule 14-301 of the Standards of Professionalism and Civility, which prohibits lawyers from engaging in any “discriminatory conduct in law-related activities.” And, unlike proposed Rule 8.4(g), the proposed amendments contain nothing that exempts a lawyer’s client selection decisions from Rule 8.4(h)’s prohibitions. Therefore, since a lawyer’s client selection decisions are clearly a law-related activity, the proposed amendments must prohibit lawyers from engaging in “discriminatory conduct” in exercising their client selection decisions.
And we know that limiting the client selection decision exemption to proposed Rule 8.4(g) and not extending it to proposed Rule 8.4(h) is not just an oversight, because the drafters of the proposed amendment knew how to make provisions applicable to both 8.4(g) and (h) if they wanted. So, for example, the proposed amendments specifically provide that: “Comment [5]. Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution” (our emphasis).
So, in short, contrary to the assertions of the Rule’s proponents, the proposed Rule will apply to an attorney’s client selection decisions and will prohibit attorneys from declining representation of particular clients if to do so could be considered discriminatory.
2. The Proposed Amendments Constitute An Alarming Departure From the Historically and Professionally Recognized Right of Attorneys to Select Their Own Clients.
This is an alarming departure from the professional principles historically enshrined in Utah’s Rules of Professional Conduct and its predecessors, which have, before now, always respected the attorney’s freedom and professional autonomy when it comes to choosing who to represent and what cases to accept.
Although the Rules have placed restrictions on which clients attorneys may not represent (see, for example, Rule 1.7 which precludes attorneys from representing clients or cases in which the attorney has a conflict of interest, and Rule 1.16(a) which requires attorneys to decline or withdraw from representation when representation would compromise the interests of the client), never before have the Rules required attorneys to take cases the attorney decides – for whatever reason – he or she does not want to take, or to represent clients the attorney decides – for whatever reason – he or she does not want to represent. (Although Rule 6.2 prohibits attorneys from seeking to avoid court appointed representation, that Rule does not apply to an attorney’s day-to-day voluntary client selection decisions – and even in its peculiar context of court-appointed representation the Rule expressly allows attorneys to decline such appointments “for good cause” – including because the attorney finds the client or the client’s cause repugnant.)
Indeed, up until now, the principle that attorneys were free to accept or decline clients or cases at will, for any or no reason, prevailed universally. See, for example, Modern Legal Ethics, Charles W. Wolfram, p. 573 (1986)(“a lawyer may refuse to represent a client for any reason at all – because the client cannot pay the lawyer’s demanded fee; because the client is not of the lawyer’s race or socioeconomic status; because the client is weird or not, tall or short, thin or fat, moral or immoral.”). The reasons underlying this historically longstanding respect for attorneys’ professional autonomy in making client and case selection decisions are clear.
First, the Rules themselves respect an attorney’s personal ethics and moral conscience. For example, section [7] of the Preamble to Utah’s Rules provides that “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience” and section [9] of the Preamble provides that “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person . . . Such issues must be resolved through the exercise of sensitive professional and moral judgment . . .”
If a lawyer is required to accept a client or a case to which the attorney has a moral objection, however, the Rules would have the effect of forcing the attorney to violate his or her personal conscience, would interfere with the lawyer’s interest in remaining an ethical person, and would prohibit lawyers from exercising their own moral judgment.
And second, the Rules impose upon attorneys a professional obligation to represent their clients zealously (Comment [1] to Rule 1.3) and without personal conflicts (Rule 1.7(a)(2)). A lawyer’s ability to conform to those duties, however, would be compromised should the lawyer have personal or moral objections to a client or a client’s case.
To force an attorney to accept a client or case the attorney does not want, and to then require the attorney to provide zealous representation to that client, is unfair to the attorney because doing so places conflicting and unresolvable obligations upon the lawyer. But it will also harm clients because every client deserves an attorney who is not subject to or influenced by any interests which may, directly or indirectly, adversely affect the lawyer’s ability to zealously, impartially, and devotedly represent the client’s best interests.
We must always remember that a primary purpose of the Rules is to protect the public, by ensuring that attorneys represent their clients competently and without personal interests that will adversely affect the attorney’s ability to provide clients with undivided and zealous representation. It recognizes the principle that the client’s best interest is never to have an attorney who – for any reason – cannot zealously represent them or who has a personal conflict of interest with the client.
The proposed amendments to the Rules, however, will force an attorney to represent clients who the attorney cannot represent zealously or who, on account of the attorney’s personal beliefs about the client or the case, will not be able to represent without a personal conflict of interest. In that respect, the proposed amendments will harm clients.
Indeed, the proposed amendments, if adopted, would introduce insidious deception into the attorney-client relationship because – in order to avoid violating the Rule – some attorneys will be led to conceal their personal animosities from clients, thereby saddling clients with attorneys who – if the client knew of the attorney’s animosities – the client would not retain.
For these reasons, too, the proposed amendments should be rejected.

The following document is too long to post within these comment fields. I am sharing the document via Dropbox and Google Drive for your convenience. Thank you for your consideration. Feel free to contact me should you need better access.

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Sincerely,

Melissa Holyoak of the Hamilton Lincoln Law Institute submits this letter to the Utah Supreme Court:

https://hlli.org/wp-content/uploads/2020/07/HLLI-Comments-to-Utah-Rule-8.4-and-14-301-Revision.pdf