Posted: March 21, 2019
Rules Governing the Utah State Bar – Comment Period Closed May 5, 2019
USB14-0301. Standards of Professionalism and Civility. Amend. Provides that a lawyer shall avoid hostile, demeaning, humiliating, intimidating, harassing, or discriminatory conduct with all other counsel, parties, judges, witnesses, and other participants in the proceedings.
This rule coordinates with Rule 8.4 of the Utah Rules of Professional Conduct.
This entry was posted in -Rules Governing the State Bar, USB14-0301.
We have this rule in Arizona and have for a number of years. I represent a number of lawyers who have been accused of violating this rule in Arizona. The problem I see with the rule is that there are no standards as to what the terms Professionalism and Civility mean. I know that some lawyers believe it is like the famous quote by the U.S. Supreme Court on pornography; i.e. “I can’t define it, but I know it when I see it”.
What is unprofessional to one (1) lawyer may not be to another. What is civil to one (1) may not be to another. I have taken many professional civility CLE courses and still don’t know the standard. I feel that in Arizona, it has come to mean whatever the State Bar of Arizona feels it means. The Bar prosecutes discipline here with the use of a special judge who handles the charges.
Just my feeling from an old, now retired in Utah, war horse. (I am 76 years old and started my practice in Washington State in 1980.) I am still actively practicing law in Arizona.
C. Robert Collins Utah Bar Number 5455 and Arizona Bar Number 015405.
Amen, C. Robert Collins.
I wrote in an objection to to a domestic relations commissioner’s recommendations that her erroneous actions were “inexcusable and inexcusably prejudicial” and was sanctioned for writing such a thing. It’s getting to the point that “hostile, demeaning, humiliating, intimidating, harassing, or discriminatory conduct” is in the eye of the self-proclaimed victim. Say or write something I find offensive and YOU have engaged in “hostile, demeaning, humiliating, intimidating, harassing, or discriminatory conduct” whether YOU meant to or not.
This has to end.
Lawyers take on controversial subjects. If we cannot call a spade a spade (see, already one could argue that I’m a racist, if one really wanted to), we cannot communicate clearly. If we cannot communicate clearly–and take the risk of possibly offending someone, somehow–then the facts and law cannot be articulated correctly. If we cannot articulate the facts and law correctly, they cannot be analyzed correctly, and if they cannot be understood and analyzed correctly, there can be no justice or equity, or if there can be, it’s only accidental.
If Cohen v. California is what lawyers stand for, we’ve got to be given more latitude in making our own arguments as lawyers ourselves.
Infringe free speech (even the icky kind), and liberty and freedom themselves are infringed. Restrict one’s speech and one’s ability to think and act are restricted. We cannot deal with the thorny issues of law if we cannot freely discuss and debate them without fear that the tools of the discuss and debate will be used against us.
The change is urgently need by making is misconduct to repeatedly violate the rules of civility. It is critical to our justice system that counsel act professionally at all times towards opposing counsel and parties. Uncivil conduct causes emotional damage, unnecessarily enlarges and delays proceedings and reflects poorly on our profession. It is sad that we are at a point where civility needs to be described and enforced in this manner, but that is, nonetheless, the current state of affairs. While the vast majority of practitioners act professionally at all times, there is a growing number of “loud” practitioners who feel that harassment, hostility, dishonesty, abuse, prejudicial behavior, and other uncivil conduct outside the direct view of the court are warranted as long as a legal objective is sought. The ends DO NOT justify the means, and it is critical to the functioning of the state bar that these individuals be stopped and held accountable.
I propose the following change: At the end of the last sentence of paragraph 3 of rule 14-0301, add the following:
“, the rules of evidence, or the rules of civil procedure.”
Even this proposed change may be insufficient, for the following reasons:
As currently drafted, the rule could be read to mean that trial counsel is prohibited from arguing that a party or witness lied on the stand or in deposition. Such statements may humiliate or even intimidate, but witness demeanor, conduct, and truthfulness are fair game at trial. In other words, a successful cross-examination may establish that a party or witness is a liar and should not be believed. Counsel must be free to make such arguments, pointedly. Witness demeanor is always “in evidence,” and jurors are instructed on demeanor and credibility. URCP 52(a)(4) provides that witness credibility is an important element when factual findings are reviewed on appeal. Counsel must be free to argue those matters, and bluntly. I am not talking about yelling or name-calling. But parties and witnesses lie. A good cross-x will expose that, however “humilating” or “intimidating” it may be. The committee should at least include a comment to assure trial counsel that they do not risk a rule violation because they exposed, and then argued, false or unreliable testimony. That is a chief purpose of cross-examination.
Correct.
Good grief (and no, I am not sorry if this interjection offends anyone), the way the revisions to this “Standard” (which is effectively now a rule of professional conduct: remember when we were conned into believing the Standards of Professionalism and Civility would not be merely “aspirational” and not used as the basis for attorney discipline?) is so broadly drafted, it will make the cure worse than any perceived disease.
I’ve already been chastised in and by courts for describing people whom I assert are lying of being liars. This is court! This is criminal and civil litigation. The point is to ferret out and find the truth.
If we must “avoid hostile, demeaning, humiliating, intimidating, harassing, or discriminatory conduct,” good luck with successfully prosecuting those who are guilty of any crime or tort that involves questions of moral infractions, questions of intent, of negligence, etc.
Can you think of:
– almost any crime that, if proven committed, does not have the inherent effect of being demeaning and/or humiliating?
– any high stakes or tense case that is not intimidating?
– anyone who loses a case who may NOT claim to feel (whether the claim is sincere or just opportunistic) he/she was the object of hostility, intimidation, harassment, and of demeaning and humiliating allegations?
Who decides what “intimidating, harassing, or discriminatory conduct” is?
How is it determined what “intimidating, harassing, or discriminatory conduct” is?
Enforcement of “Political Correctness” has become insane!
Could one claim to feel demeaned, humiliated, and intimidated by Charles’s ostensibly hostile and discriminating words and tone? If so, what do we do with him? Fortunately, George Orwell gave us the answer: http://orwell.ru/library/novels/1984/english/en_app
The terms hostile, intimidating and harassing are too broad. An Attorney who is zealously representing a client by its very nature is adversarial. These terms can be interpreted in ways which are not intended but can leave an attorney open to rule violation
This is a bad idea for at least all the reasons mentioned above. Lawyers would be required to reduce the ‘zeal’ of their representation to the absolute lowest common denominator. If this passes you will need to change DR1.3[1] to read:
[1] A lawyer should pursue a matter on behalf of a client UNLESS THERE IS opposition, obstruction or personal inconvenience to the lawyer OR ANYONE ELSE and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor UNLESS SOMEONE COULD POSSIBLY BE OFFENDED THEREBY. A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf UNLESS SOMEONE COULD POSSIBLY BE OFFENDED THEREBY. A lawyer is not bound, however, to press for every advantage that might be realized for a client EPECIALLY IF SOMEONE’S FEELINGS OCULD BE HURT. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not ALLOW the use of tactics THAT COULD POSSIBLY BE offensive or preclude the treating of all persons involved in the legal process with courtesy and respect.
The sweeping breadth of this proposed rule change will undermine its application. While it is a laudable goal to canonize the permissible scope of legal behavior & discourse, the meaning of “hostile, humiliating, demeaning, intimidating, harassing..” is more than vague in the context of cross examination & in the context of negotiations between adverse parties. While it is not my style or habit to utilize language which might offend others, the use of “hostile” questions, or drawing conclusions which expose deceit (& thus “intimidate” or “humiliate”) another party are the stock in trade of many respected attorneys. Not to “demean” another is an especially pernicious standard in a world where “micro-offense” warnings are now in play. What may be “demeaning” to one is but the naked truth to another. As for the prohibition of “harassment,” we must all acknowledge that much of what goes on in our judicial system is, to put it bluntly, designed to “harass” our adversaries (hopefully in a polite manner). The use of such broad words, however well intentioned may be the goal, will only put a sword into the hands of the adversary. It will become a standard strategy to threaten the opponent’s counsel with disciplinary retribution when all other defenses fail. This attempt to formalize the structures of “civility” will be the undoing of the term.
This rule goes too far in making conduct that is necessary in performing our job as advocates and problems solvers a violation of professional conduct. As civil litigants, it is part of our role to prove when the other side has lied about relevant issues, is prejudiced about relevant issues, or has engaged in inappropriate or unlawful conduct relevant to the subject of the litigation. In demonstrating these things, lawyers tend to be perceived as being hostile, demeaning, humiliating, intimidating, harassing, and could be viewed as being discriminatory. By nature these civil cases usually involve parties and persons that disagree with each other so deeply they are willing to invest great time and money into proving they are right, and the other side is wrong, and people will often feel they are being wronged in a manner that they would consider a violation of this rule.
Similarly, in criminal work we are proving to a jury or a judge things that are often demeaning, humiliating, and harassing. I recall once in a criminal trial I proved that a witness was lying, and the father of the witness stood up in court and threatened me. Certainly, he thought I was treating his adult son in a humiliating, hostile, and discriminatory manner, but it was necessary to do this to prove to the jury the elements of the crime beyond a reasonable doubt.
I believe the old rule encouraged us to act in an appropriate manner without preventing us from doing our jobs. I encourage the old rule to be left in place un-amended.
Wow this is incredible! What is really trying to be done here? As a litigating attorney, my overall experience in dealing with attorneys is great. For any instance in which the court believes that an attorney is out of line, it already has the power to address the same (e.g. it can make a referral and/or sanction an attorney). As such, I am having a hard time understanding why this rule is necessary. What is clear though, is that this rule’s attempt at correcting a perceived problem is simply going to cause many more problems.
For example, by the very nature of litigation, opposing parties feel like the other attorney is hostile, demeaning, humiliating, intimidating, harassing, and engaging in discriminatory conduct. As such, rule 14-0301, if promulgated, will become a commonly used tool in litigation by many opposing parties against their opposing attorneys so as to harass and cause problems for the other side.
Moreover, it will result in increased complaints to the bar that will need to be ferreted out, and thus drive up the Bar’s overhead (and then bar fees). It is not unimaginable that every litigator will be caught up with such complaints several times a year, and will have to spend her/his own time and resources in defending frivolous complaints without any such recompense, and will certainly drive up malpractice costs for everyone.
It is worth noting that the rules don’t apply to pro se litigants or the parties themselves, so there will not be any negative repercussions to submitting a frivolous bar complaint.
I agree with the comments showing concern that this rule could inhibit, in particular, cross examination of witnesses at trial. There are a lot of adjectives here, and some of them are so vague that they provide no real guidance. Worse, this becomes a weapon that will be abused to discourage zealous advocacy. I would agree that “hostile”, “harassing” and “discriminatory” should remain, as those are more easily and objectively identifiable, and detract from what should always be civil proceedings. But if a witness on the stand is “humiliated”, “intimidated” or “demeaned” if they are shown to be lying, for example, or to have conducted themselves in a way that the law bars or discourages, the cross-examining lawyer should be applauded for bringing the truth out, and not held in violation of rules of professional conduct by embarrassing a wrong doer with the truth. And is it possible that a judge could feel “demeaned” or “humiliated” if counsel points out an erroneous ruling, even nicely? I suppose so. In negotiating a settlement, won’t both sides of the dispute be “intimidated” by threats from the other side that expensive and trying litigation will result if they don’t capitulate to demands? Everyone wants the process to be civil, but it is an adversarial process that by its nature involves strong disagreements and feelings. Lawyers should not be restrained in zealously representing their clients by fear of hurting the feelings of the people involved in the process, and facing a bar complaint if they do.
Sorry, I have another thought. This occurred to me overnight. Shouldn’t the focus be on intent, rather than effect? Lawyers shouldn’t intend to do all these bad things, but they should not be held in violation of the rule if the unintended effect is an inference that might be unavoidable in the circumstances, e.g. my perjuring witness example above. Thus, I suggest the following: “Provides that a lawyer shall avoid conduct the sole purpose of which is to be hostile, demeaning, humiliating, intimidating, harassing or discriminatory towards other counsel, parties, judges, witnesses, and other participants in the proceedings.”
Christian Legal Society (“CLS”) is an interdenominational association of Christian attorneys, law students, and law professors, founded in 1961, to network lawyers and law students nationwide, including members in Utah.
2017 Proposal: In the previous comment period, which closed July 28, 2017, CLS filed its comment letter on July 18, 2017. Those comments addressed the proposed addition of Utah Rules of Professional Conduct Rule 8.4(g) that would essentially have adopted ABA Model Rule 8.4(g). Those comments continue to be applicable to several parts of the second proposed rule that are the subject of the current second comment period. The comments can be read at https://www.utcourts.gov/utc/rules-comment/2017/06/13/rules-of-professional-conduct-comment-period-closes-july-28-2017/.
In its July 2017 comments, CLS explained that it opposed adoption of ABA Model Rule 8.4(g) because, if adopted, Model Rule 8.4(g) would have a chilling effect on lawyers’ expression of disfavored political, social, and religious viewpoints on a multitude of issues. If adopted, Model Rule 8.4(g) would create ethical concerns for attorneys who serve on nonprofit boards, speak publicly on legal topics, teach at law schools, advocate for legislation, or otherwise discuss current political, social, or religious issues. Because lawyers often serve as spokespersons for political, social, or religious movements, a rule that could be employed to discipline a lawyer for his or her speech on controversial issues should be rejected as a serious threat to freedom of speech, free exercise of religion, and freedom of political belief in a diverse society.
United States Supreme Court Decisions in 2017 and 2018: On August 17, 2018, CLS filed with the Utah Supreme Court a supplemental comment letter in order to bring to the Court’s attention the United States Supreme Court’s decision in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”). https://www.clsreligiousfreedom.org/sites/default/files/site_files/Christian%20Legal%20Society%20Supplemental%20Comment%20Letter%20Submitted%202018-08-17%20UT.pdf
Basically, since the ABA adopted Model Rule 8.4(g) in August 2016, the United States Supreme Court has issued two major free speech decisions that demonstrate the unconstitutionality of ABA Model Rule 8.4(g). First, under the Court’s analysis in NIFLA, ABA Model Rule 8.4(g) is an unconstitutional content-based restriction on lawyers’ speech. The NIFLA Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. Second, under the Court’s analysis in Matal v. Tam, 137 S. Ct. 1744 (2017), ABA Model Rule 8.4(g) is an unconstitutional viewpoint-based restriction on lawyers’ speech that cannot survive the strict scrutiny triggered by viewpoint discrimination.
Recently, the ABA Section of Litigation published an article confirming that several section members see the Court’s NIFLA decision as raising serious concerns about the overall constitutionality of ABA Model Rule 8.4(g):
Model Rule 8.4(g) “is intended to combat discrimination and harassment and to ensure equal treatment under the law,” notes Cassandra Burke Robertson, Cleveland, OH, chair of the Appellate Litigation Subcommittee of the Section’s Civil Rights Litigation Committee. While it serves important goals, “the biggest question about Rule 8.4(g) has been whether it unconstitutionally infringes on lawyers’ speech rights—and after the Court’s decision in Becerra, it increasingly looks like the answer is yes,” Robertson concludes.
Thea Pitzen, First Amendment Ruling May Affect Model Rules of Professional Conduct: Is Model Rule 8.4(g) Constitutional?, ABA Section of Litigation Top Story, Apr. 3, 2019, https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2019/first-amendment-ruling-may-affect-model-rules-prof-cond/.
Utah 2019 Revised Proposal: A second comment period is now open to consider a complicated revised proposal that would:
1. Add new Utah Rules of Professional Conduct Rule 8.4(g) that is a confusing hybrid of elements of ABA Model Rule 8.4(g) with Title VII and the Utah Antidiscrimination Act;
2. Add new Utah Rules of Professional Conduct Rule 8.4(h) that would make it professional misconduct to violate the Utah Standards of Professionalism and Civility in certain instances; and
3. Amend the Utah Standards of Professionalism and Civility to regulate attorneys’ speech in ways that violate the First Amendment as analyzed by the United States Supreme Court in NIFLA and Matal.
This revised proposal should be rejected if for no other reason than it is so complicated and confusing that lawyers cannot be sure which speech triggers disciplinary action. In addition to serious constitutional concerns, numerous other practical reasons for rejecting the revised proposal exist as well.
I. This Court Should Not Subject Utah Attorneys to a Complicated and Confusing Set of Rules That Have Not Been Adopted by Any Other State Supreme Court.
A. Utah Already has Rule of Professional Conduct 8.4(d) and Its Comment 3.
Utah Rule of Professional Conduct 8.4(d) currently provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Utah has adopted Comment 3 to that rule, which provides:
A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
Utah R. Prof’l Conduct 8.4 cmt.3. Comment 3 is a verbatim adoption of Comment 3 that accompanied ABA Model Rule 8.4 from 1998 to 2016.
Utah attorneys should not be made the subjects of the novel experiment that the revised proposal represents. This is particularly true when the Utah Supreme Court has the prudent option of waiting to see what other jurisdictions decide to do and then observing the real-world consequences for attorneys in those states. There is no need for haste because current Utah Rule 8.4(d) already prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and current Comment [3] to Rule 8.4 already deems bias and prejudice in the course of representing a client to be professional misconduct if the conduct is prejudicial to the administration of justice.
B. No Jurisdiction has Adopted the Revised Proposal, and Only One Jurisdiction, Vermont, has Adopted ABA Model Rule 8.4(g).
To the best of our knowledge, no state has adopted a rule like the revised proposal, which is a complex combination of elements of ABA Model Rule 8.4(g) with elements of some other states’ rules that require conduct be unlawful before it is subject to discipline. But as explained below, the revised proposal fails to track those other states’ rules in important ways. To add to the confusion, the revised proposal also amends the Utah Standards of Professionalism and Civility in troubling ways and subjects some violations of those standards to discipline for professional misconduct. The result is a set of rules, which if adopted, greatly expands the grounds upon which Utah lawyers may be subject to discipline.
The Utah Supreme Court was wise to reject the 2017 proposal, which essentially called for adoption of ABA Model Rule 8.4(g). After nearly three years of deliberations in many states across the country, Vermont remains the only state to have adopted ABA Model Rule 8.4(g). In contrast, at least eleven states have concluded, after careful study, that ABA Model Rule 8.4(g) is both unconstitutional and unworkable.
II. Official Entities in Arizona, Idaho, Illinois, Montana, North Dakota, South Carolina, Tennessee, and Texas Have Rejected ABA Model Rule 8.4(g), and Louisiana, Minnesota, and Nevada Have Abandoned Efforts to Impose It on Their Attorneys.
One of federalism’s great advantages is that one state can reap the benefit of other states’ experience. Prudence counsels waiting to see whether other states adopt ABA Model Rule 8.4(g) and then observing the effects of its real-life implementation on attorneys in those states. This is particularly true when ABA Model Rule 8.4(g) has failed close scrutiny by official entities in many states. Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173, 213-217 (2019).
A. Several State Supreme Courts Have Rejected ABA Model Rule 8.4(g).
The Supreme Courts of Arizona, Idaho, Tennessee, South Carolina, and Montana have officially rejected adoption of ABA Model Rule 8.4(g). On August 30, 2018, after a public comment period, the Arizona Supreme Court rejected a petition from the Central Arizona Chapter of the National Lawyer Guild urging adoption of ABA Model Rule 8.4(g). A week later, on September 6, 2018, the Idaho Supreme Court rejected a resolution by the Idaho State Bar Association to adopt a modified version of ABA Model Rule 8.4(g).
On April 23, 2018, after a public comment period, the Supreme Court of Tennessee denied a petition to adopt a slightly modified version of ABA Model Rule 8.4(g). The petition had been filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility. The Tennessee Attorney General filed a comment letter, explaining that a black letter rule based on ABA Model Rule 8.4(g) “would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.”
On October 26, 2016, the Montana Supreme Court announced a public comment period through December 9, 2016, to consider adoption of ABA Model Rule 8.4(g), but then announced an extension of the comment period until April 21, 2017. In a memorandum dated March 1, 2019, the court noted that it “chose not to adopt the ABA’s Model Rule 8.4(g).”
On September 25, 2017, the Supreme Court of Nevada granted the request of the Board of Governors of the State Bar of Nevada to withdraw its petition urging adoption of Model Rule 8.4(g). In a letter to the Court, dated September 6, 2017, the State Bar President explained that “the language used in other jurisdictions was inconsistent and changing,” and, therefore, “the Board of Governors determined it prudent to retract [the Petition] with reservation to refile [it] when, and if the language in the rule sorts out in other jurisdictions.”
In June 2017, the Supreme Court of South Carolina rejected adoption of ABA Model Rule 8.4(g). The Court acted after the state bar’s House of Delegates, as well as the state attorney general, recommended against its adoption.
On January 23, 2019, the ABA published a summary of the states’ consideration of ABA Model Rule 8.4(g) to date. By the ABA’s own count, nine states have declined to adopt Model Rule 8.4(g): Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, and Tennessee. (We add Texas and North Dakota to that list.) The ABA lists Vermont as the only state to have adopted 8.4(g).
B. State Attorneys General Have Identified Core Constitutional Issues with ABA Model Rule 8.4(g).
On March 16, 2018, the Attorney General of Tennessee filed Opinion 18-11, American Bar Association’s New Model Rule of Professional Conduct Rule 8.4(g), attaching his office’s comment letter to the Supreme Court of Tennessee, opposing adoption of a proposed rule closely modeled on ABA Model Rule 8.4(g). The Attorney General concluded that the proposed rule “would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.”
In December 2016, the Texas Attorney General issued an opinion opposing ABA Model Rule 8.4(g). The Texas Attorney General stated that “if the State were to adopt Model Rule 8.4(g), its provisions raise serious concerns about the constitutionality of the restrictions it would place on members of the State Bar and the resulting harm to the clients they represent.” The Attorney General declared that “[c]ontrary to . . . basic free speech principles, Model Rule 8.4(g) would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues.”
In September 2017, the Louisiana Attorney General concluded that “[t]he regulation contained in ABA Model Rule 8.4(g) is a content-based regulation and is presumptively invalid.” Because of the “expansive definition of ‘conduct related to the practice of law’ and its “countless implications for a lawyer’s personal life,” the Attorney General found the Rule to be “unconstitutionally overbroad as it prohibits and chills a substantial amount of constitutionally protected speech and conduct.”
Agreeing with the Texas Attorney General’s assessment of the unconstitutionality of ABA Model Rule 8.4(g), the Attorney General of South Carolina determined that “a court could well conclude that the Rule infringes upon Free Speech rights, intrudes upon freedom of association, infringes upon the right to Free Exercise of Religion and is void for vagueness.”
On May 21, 2018, the Arizona Attorney General filed a comment letter urging the Arizona Supreme Court to heed the opposition of other states, state attorneys general, and state bar associations to adoption of ABA Model Rule 8.4(g). He also noted the constitutional concerns that ABA Model Rule 8.4(g) raises as to free speech, association, and expressive association. (Links to referenced documents can be found in CLS’ comment letter dated April 11, 2019, to the New Hampshire Supreme Court at 10-13, https://www.clsreligiousfreedom.org/sites/default/files/site_files/Christian%20Legal%20Society%20Comment%20Letter%202019.pdf).
C. The Montana Legislature Recognized the Problems That ABA Model Rule 8.4(g) Might Create for Legislators, Witnesses, Staff, and Citizens.
On April 12, 2017, the Montana Legislature adopted a joint resolution expressing its view that ABA Model Rule 8.4(g) would unconstitutionally infringe on the constitutional rights of Montana citizens and urging the Montana Supreme Court not to adopt ABA Model Rule 8.4(g). The impact of Model Rule 8.4(g) on “the speech of legislative staff and legislative witnesses, who are licensed by the Supreme Court of the State of Montana to practice law, when they are working on legislative matters or testifying about legislation before Legislative Committees” greatly concerned the Montana Legislature.
D. Several State Bar Associations Have Rejected ABA Model Rule 8.4(g).
On December 10, 2016, the Illinois State Bar Association Assembly “voted overwhelmingly to oppose adoption of the rule in Illinois.” On October 30, 2017, the Louisiana Rules of Professional Conduct Committee, which had spent a year studying a proposal to adopt a version of ABA Model Rule 8.4(g), voted “not to recommend the proposed amendment to Rule 8.4 to either the House of Delegates or to the Supreme Court.”
On September 15, 2017, the North Dakota Joint Committee on Attorney Standards voted not to recommend adoption of ABA Model Rule 8.4(g), expressing concerns that it was “overbroad, vague, and imposes viewpoint discrimination” and that it might “have a chilling effect on free discourse by lawyers with respect to controversial topics or unpopular views.”
III. Scholars Continue to Critique ABA Model Rule 8.4(g).
Professor Eugene Volokh of UCLA School of Law, a nationally recognized First Amendment expert, has summarized his view that ABA Model Rule 8.4(g) is a speech code that will have a serious impact on attorneys’ speech in a short video for the Federalist Society at https://www.youtube.com/watch?v=AfpdWmlOXbA. Professor Volokh expanded on the many problems of ABA Model Rule 8.4(g) in a debate at the Federalist Society National Student Symposium at https://www.youtube.com/watch?v=b074xW5kvB8&t=50s.
The late Professor Ronald Rotunda, a highly-respected scholar in both constitutional law and legal ethics, early warned that ABA Model Rule 8.4(g) threatens lawyers’ First Amendment rights. Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting ‘Diversity’ But Not Diversity of Thought, The Heritage Foundation (Oct. 6, 2016), http://thf-reports.s3.amazonaws.com/2016/LM-191.pdf. Professor Rotunda and Texas Attorney General Ken Paxton debated two proponents of Rule 8.4(g) at the 2017 Federalist Society National Lawyers Convention at https://www.youtube.com/watch?v=V6rDPjqBcQg.
Regarding the new rule, he and Professor John S. Dzienkowski wrote, in the 2017-2018 edition of Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, “[t]he ABA’s efforts are well intentioned, but . . . raise problems of vagueness, overbreadth, and chilling protected speech under the First Amendment.” Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, ed. April 2017, “§ 8.4-2(j) Racist, Sexist, and Politically Incorrect Speech” & “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” in “§ 8.4-2 Categories of Disciplinable Conduct.”
Dean Michael S. McGinniss, who teaches professional responsibility, recently “examine[d] multiple aspects of the ongoing ABA Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, [and] socially conservative lawyers’ justified distrust of new speech restrictions.” Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173, 173 (2019). Professor Josh Blackman has explained that ABA Model “Rule 8.4(g) is unprecedented, as it extends a disciplinary committee’s jurisdiction to conduct merely ‘related to the practice of law,’ with only the most tenuous connection to representation of clients, a lawyer’s fitness, or the administration of justice.” Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 241, 243 (2017).
In a thoughtful examination of the rule’s legislative history, practitioners Andrew Halaby and Brianna Long concluded that ABA Model Rule 8.4(g) “is riddled with unanswered questions, including but not limited to uncertainties as to the meaning of key terms, how it interplays with other provisions of the Model Rules, and what disciplinary sanctions should apply to a violation; as well as due process and First Amendment free expression infirmities.” They recommend that “jurisdictions asked to adopt it should think long and hard about whether such a rule can be enforced, constitutionally or at all.” And they conclude that “the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.” Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 204, 257 (2017).
The basic First Amendment concerns with the impact of a rule incorporating significant parts of ABA Model Rule 8.4(g) were explained in CLS’ 2017 comments and will not be repeated here. But there are at least four reasons the revised proposal exacerbates the already existing concerns about the chilling effect that proposed Rule 8.4(g) will have on attorneys’ speech.
First, it is a major problem that the revised proposal retains many elements of ABA Model Rule 8.4(g)’s Comments [3], [4], and [5] in the revised proposal’s Comments [4] and [5]. Those comments are the source of many of the First Amendment concerns highlighted in CLS’ 2017 comments.
Second, the proposed Rule 8.4(h) introduces a whole new set of concerns as to the chilling effect of the revised proposal on attorneys’ speech. By explicitly incorporating the Standards of Professionalism and Civility as a fertile source of professional misconduct claims, the revised proposal transforms a long list of largely aspirational standards into a breeding ground for professional misconduct claims.
Third, the proposed Rule 8.4(h) would make it professional misconduct for a lawyer to fail to “avoid hostile, demeaning, humiliating . . . conduct” (Standards of Professionalism and Civility, Std. 3), which its comment makes clear includes “communications.” The same comment directs that lawyers “should refrain from expressing scorn, superiority, or disrespect.” This standard would seem to be unconstitutional under the Matal and NIFLA analyses. Other standards that apply to attorneys’ speech would seem to raise the same First Amendment concerns. For example, Standard 1 states that “[l]awyers are expected to refrain from inappropriate language . . . in telephone calls, email, and other exchanges.”
Fourth, Comment [4a] applies only to proposed Rule 8.4(g) and not to proposed Rule 8.4(h). Even if it applied to both, however, its mere assertion that these new proposed rules “do[] not apply to expression or conduct protected by the First Amendment” is not enough to ameliorate the chilling effect of the revised proposal on lawyers’ speech. For all of these reasons, as well as those below, the revised proposal should be rejected.
IV. Proposed Rule 8.4(g) Introduces Several New Problems.
The revised proposal would adopt two new black letter rules. At first glance, the proposed Rule 8.4(g) seems to be like state rules, such as Illinois, that require that conduct be found to be “unlawful” before it can trigger a charge of professional misconduct. But on closer examination that is not the case, and the revised proposal lacks key elements of the Illinois rule.
First, the proposed Rule 8.4(g) would make it professional misconduct for a lawyer to “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.” Confusion is created by the fact that the proposed rule seems to punish more than an “unlawful” employment practice, but seems also to punish “discriminatory, or retaliatory” employment practices. The use of the disjunctive “or” reinforces that it is not limited to “unlawful” employment practices. Yet a superficial reading of the revised proposal sounds as if it is intended to be limited solely to “unlawful” employment practices. If the revised proposal is intended to be so limited, then the modifiers “discriminatory, or retaliatory” need to be deleted. If it is not intended to be so limited, then there needs to be more explanation regarding which “discriminatory, or retaliatory employment practice[s]” that are not “unlawful” will be considered professional misconduct.
Second, relatedly, proposed Comment [4] states that the “substantive law of antidiscrimination and anti-harassment statutes and case law guides the application” of proposed Rule 8.4(g). This adds to the confusion because if the purpose is to limit proposed Rule 8.4(g) to conduct that is “unlawful” under Title VII and the Utah Antidiscrimination Act, the substantive law should govern, not guide, the application. Otherwise, the limitation to “unlawful” conduct is meaningless.
Third, and perhaps most importantly, the Illinois rule requires a judicial or administrative tribunal, other than a state bar tribunal, find that an attorney committed unlawful discrimination before the state bar may entertain a disciplinary complaint against the attorney. This requirement ensures that the attorney has been found to have engaged in unlawful conduct in a tribunal that provides the attorney with greater due process rights, access to discovery, and evidentiary protections than may typically be found in the bar disciplinary process. Any black letter rule should include the requirement that any conduct found to be professional misconduct have been first adjudicated to be “unlawful” by a tribunal other than the screening panel of the Ethics and Discipline Committee. Proposed Rule 8.4(g) lacks this requirement.
Fourth, the re-definition of “employer” means that solo practitioners and small firms will be particularly vulnerable to complaints of professional misconduct. A person who wishes to complain regarding the conduct of a firm of 15 or more lawyers will have a choice to pursue a remedy in federal court under Title VII, in state court under the Utah Antidiscrimination Act, or lodge a disciplinary complaint. But if the subject of a complaint is a solo practitioner or a small firm, the new – but only – option is to lodge a disciplinary complaint.
Fifth, additional confusion is created by the attempt to meld an Illinois-type rule with comments based on ABA Model Rule 8.4(g). If the proposed Rule 8.4(g) is not ABA Model Rule 8.4(g), then why attach comments that accompany the ABA Model Rule 8.4(g) to a black letter rule that is not ABA Model Rule 8.4(g)?
V. Proposed Rule of Professional Conduct 8.4(g) Could Limit Utah Lawyers’ Ability to Accept, Decline, or Withdraw from a Representation.
The proponents of ABA Rule 8.4(g) generally claim that it will not affect a lawyer’s ability to refuse to represent a client. They point to the language in the Rule that it “does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.” (The revised proposal states that proposed Rule 8.4(g) “does not limit the ability of a lawyer to accept, decline, or in accordance with Rule 1.16, withdraw from a representation.”)
But in the one state to have adopted ABA Model Rule 8.4(g), the Vermont Supreme Court explained in its accompanying Comment [4] that “[t]he optional grounds for withdrawal set out in Rule 1.16(b) must also be understood in light of Rule 8.4(g). They cannot be based on discriminatory or harassing intent without violating that rule.” The Vermont Supreme Court further explained that, under the mandatory withdrawal provision of Rule 1.16(a), “a lawyer should withdraw if she or he concludes that she or he cannot avoid violating Rule 8.4(g).”
Professional ethics experts agree that this is a genuine concern with ABA Model Rule 8.4(g) despite its inclusion of reassuring language. As Professor Rotunda and Professor Dzienkowski explain, Rule 1.16 actually “deals with when a lawyer must or may reject a client or withdraw from representation.” Rotunda & Dzienkowski, supra, in “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” (emphasis in original). Rule 1.16 does not address accepting clients. Moreover, as Professor Rotunda and Professor Dzienkowski have observed, Comment [5] to ABA Model Rule 8.4(g) would seem to limit any right to decline representation, if permitted at all, to “limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations.”
Dean Michael McGinniss agrees that “[d]espite its ostensible nod of non-limitation, Model Rule 8.4(g) offers lawyers no actual protection against charges of ‘discrimination’ based on their discretionary decision to decline representation of clients, including ones whose objectives are fundamentally disagreeable to the lawyer.” McGinniss, supra, at 207-209. Because Model Rule 1.16 “addresses only when lawyers must decline representation, or when they may or must withdraw from representation” but not when they “are permitted to decline client representation,” Model Rule 8.4(g) seems to only allow what was already required, not declinations that are discretionary. Professor McGinniss warns that “if state bar authorities consider a lawyer’s declining representation . . . as ‘manifest[ing] bias or prejudice,’ they may choose to prosecute the lawyer for violating their codified Model Rule 8.4(g).” Id. at 207-208 & n.146.
The New York State Bar Association Committee on Professional Ethics issued an opinion in January 2017 that concluded that “[a] lawyer is under no obligation to accept every person who may wish to become a client unless the refusal to accept a person amounts to unlawful discrimination.” N.Y. Eth. Op. 1111, N.Y. St. Bar Assn. Comm. Prof. Eth., 2017 WL 527371 (Jan. 7, 2017) (emphasis supplied.). The facts before the Committee were that a lawyer had been requested to represent a claimant against a religious institution. Because the lawyer was of the same religion as the institution, he or she was unwilling to represent the claimant against the institution. Calling the definition of “unlawful discrimination” for purposes of New York’s Rule 8.4(g) a question of law beyond its jurisdiction, the Committee declined to “opine on whether a lawyer’s refusal to represent a prospective client in a suit against the lawyer’s own religious institution constitutes ‘unlawful discrimination’” for purposes of New York’s Rule 8.4(g).
In Stropnicky v. Nathanson, the Massachusetts Commission Against Discrimination found a law firm that specialized in representing women in divorce cases had violated state nondiscrimination law when it refused to represent a man. 19 M.D.L.R. 39 (M.C.A.D. 1997), affirmed, Nathanson v. MCAD, No. 199901657, 2003 WL 22480688, 16 Mass. L. Rptr. 761 (Mass. Super. Ct. 2003). As these examples demonstrate, reasonable doubt exists that Rule 1.16 provides adequate protection for attorneys’ ability to accept, decline, or withdraw from a representation.
Conclusion
The revised proposal is an amalgamation of elements of ABA Model Rule 8.4(g), an Illinois-type rule, and the Utah Standards of Professionalism and Civility that suffers from both constitutional and practical shortcomings.
The revised proposal should be rejected because it is so complicated and confusing that lawyers cannot be sure whether or not any particular speech would trigger disciplinary action. In addition to serious constitutional concerns, numerous other practical reasons exist for rejecting the revised proposal. CLS urges the Utah Supreme Court to reject the revised proposal and thanks the Court for considering its comments.
Professor Eugene Volokh and I submit this comment: https://drive.google.com/open?id=1i1F7TPQyC1XwViML4Lij8OqwdoGqAScX