Rules of Professional Conduct – Comment Period Closed July 28, 2017

This rule is full libsick. read this part: Lawyers may engage in conduct undertaken to promote diversity and
inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring,
retaining and advancing diverse employees or sponsoring diverse law student organizations.

Translation: racial discrimination is totally permitted so long as it is exercised against white people. Espl. if it is exercised against a white male.

Diversity and Inclusion: sick lib sick lib sick lib.

On behalf of the Sutherland Institute, a nonpartisan public policy organization, and as a member of the Utah State Bar, I write to urge the Court to reject proposed Rule of Professional Conduct 8.4(g).

Other comments have outlined many of the reasons this Court should not adopt the proposed rule. We write to respond specifically to the letter of support from the Board of Bar Commissioners.

Although it does not explain how, the Commissioners’ letter suggests adoption of this rule would advance its purpose of achieving a more diverse legal profession. It also suggests that adopting the rule would make a statement to the profession and the public about the profession’s intolerance of prejudice, bias, discrimination and harassment. We respectfully suggest that the proposed Rule would have precisely the opposite effect, threatening diversity in the profession and endorsing viewpoint discrimination.

The Commissioners’ letter seeks to obscure the novelty of this Rule by claiming 22 states have “similar” provisions. This is imprecise at best. The provision the letter alludes to were adopted before the Board of Delegates of the American Bar Association passed this amendment to the Model Rules in 2016. In fact, since the ABA vote, no state has adopted the proposed Rule.

Indeed, the South Carolina Supreme Court rejected the proposed Rule in June 2017; the Illinois State Bar Association’s Assembly voted to oppose the proposal in December 2016; Pennsylvania’s Disciplinary Board of the Supreme Court has proposed adoption of a limited alternative proposal; the Montana Legislature adopted a joint resolution urging the state’s Supreme Court to reject the Rule; and the Attorney General of Texas issued an opinion that the Rule violates constitutional guarantees.

Most of the pre-existing state discrimination rules avoid the pitfalls of proposed Rule 8.4(g) by including limitations such as an independent finding of unlawful discrimination, application only to conduct related to representation of a client, limiting discipline to instances of misconduct “prejudicial to the administration of justice” (as the comments to the current Utah rule does), etc.

The opinions in other states noted above have explained that the proposed Rule could limit rights of free speech, free exercise of religion, freedom of association, and due process (because of its vague provisions). Other commentators across a broad spectrum of opinions have come to similar conclusions.

Despite this broad, public opposition, the Commissioners’ letter argues that the proposed Rule would not affect rights of speech, thought, association or religious exercise. Unaccountably, the letter fails to address any of the well-documented criticisms of the opinion. The letter dismisses these concerns by pointing to the Rule’s application to “conduct related to the practice of law.” This response is inadequate for two reasons.

First, while there may be some legitimate and narrow limitations on First Amendment rights of attorneys, such as in the courtroom setting, the fact that the regulated individuals affected are attorneys cannot make an unconstitutional viewpoint discrimination provision constitutional. Professor Eugene Volokh of the UCLA School of Law argues that the proposed Rule is a speech code for lawyers, noting that “the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.”

That the proposal is not viewpoint-neutral is further illustrated by an exception noted in the comment which would allow “sponsoring diverse law student organizations.” This seems to imply that sponsoring student organizations determined to be non-diverse or prejudiced, in the estimation of disciplinary officials, would be a violation of the Rule. Thus, officials would be empowered to rule on the acceptability of the makeup and perspectives of a student group sponsored by the firm.

Relatedly, the comments to the proposed Rule suggest attorneys would still be free to limit the scope and subject matter of their practice but leaves out otherwise legitimate bases for declining representation, such as a concern that the attorney would not be able to vigorously prosecute the client’s cause. Under the Rule, it seems that failure to represent certain clients could be a violation of the proposed Rule, while the precisely same conduct (and motivation) would be fine if the attorney’s disagreement of the client was based on her opinion that the prospective client had “discriminatory” views. In the alternative, would attorneys in some cases have to disavow their clients’ position to avoid liability?

This would be an indefensible imposition on an independent profession required to make vigorous defenses of clients’ interests and could harm access to legal assistance for those with disfavored views, in violation of our strong tradition of legal representation regardless of popularity or influence.

Licensing requirements should not be turned into de facto religious or ideological tests.

Second, the “limiting” phrase the letter points to is extremely expansive, including all attorney interactions “while engaged in the practice of law” and to “participating in bar association, business or social activities in connection with the practice of law.” This would presumably include participation in continuing legal education programs, teaching courses, publishing law review articles or commentary on legal issues, public speaking, serving on boards of nonprofits, legislative testimony or even commentary, and much more.

When the Utah Legislature adopted anti-discrimination protections in 2015, it included protections of speech, association and religious liberty. Thus, no one on either side of a difficult issue would be at risk of losing their livelihood for expressing an opinion. We respectfully submit that this balanced approach is precisely what is missing in the proposed Rule, and thus, the proposed Rule should be rejected.

Proposed Rule 8.4(g) of the Utah Rules of Professional Conduct would make certain forms of discrimination professional misconduct. Unfortunately, it does so in a way that is overbroad, vague and—according to prominent scholars and two state attorneys general—a threat to free speech and other First Amendment freedoms. To date, no state has adopted it and neither should Utah.

Rule 8.4(g) has attracted criticism from politically diverse experts. UCLA law professor Eugene Volokh warned that the Rule is “a speech code for lawyers.” (Eugene Volokh, A Speech Code for Lawyers, Banning Viewpoints that Express Bias, Including in Law-Related Social Activities, WASH. POST, Aug. 10, 2016.) Professor Ronald Rotunda, author of an influential treatise on constitutional law, stated in regard to the Rule that “[w]e should be very concerned about prohibiting legitimate advice or advocacy without defining those terms carefully. The idea that advocacy is ‘illegitimate’ invites criticism of lawyers who represent unpopular clients.” (Ronald Rotunda, The ABA’s Control Over What Lawyers Say Around the Water Cooler, HARV. L. REC., Oct. 4, 2016.) And Stephen Gillers, a proponent of the Rule and an expert in legal ethics at New York University Law School, frankly admitted that Rule 8.4(g) “subordinates the right to speak in order to protect the fairness of and public confidence in the legal system.” (Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 GEO. J. L. ETHICS 195, 235 (2017) (emphasis added)).

Rule 8.4(g) has met with serious opposition in Illinois, Montana, Nevada, Pennsylvania, South Carolina, and Texas. The attorneys general of South Carolina and Texas published opinion letters opposing it on First Amendment grounds. (See Letter from Alan Wilson, South Carolina Attorney General, to Hon. John R. McCravy III, Member of the South Carolina House of Representatives, May 1, 2017, at 1, available at
http://2hsvz0l74ah31vgcm16peuy12tz.wpengine.netdna-cdn.com/wp-content/uploads/2017/05/ McCravy-J.-OS-10143-FINAL-Opinion-5-1-2017-01331464xD2C78-01336400xD2C78.pdf; Letter from Ken Paxton, Texas Attorney General, to Hon. Charles Perry, Member of the Texas Senate, Dec. 20, 2016, at 7 (“a court would likely invalidate it as unconstitutional.”), available at https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/ op/2016/kp0123.pdf.) The Montana Legislature issued a joint resolution condemning it. (Joint Resolution Opposing a Proposed Montana Supreme Court Rule, S.J. 15 (Apr. 25, 2017).) South Carolina recently rejected the Rule. (See Order, Proposed Amendments to Rule 8.4 of the Rules of Professional Conduct, No. 2017-000498 (S.C. June 21, 2017), available at http://www.sccourts.org/courtOrders/displayOrder.cfm? orderNo=2017-06-20-01.) Finally, the Illinois Bar Association Assembly “voted overwhelmingly to oppose adoption of the rule in Illinois” based on “concerns about subjecting lawyers to unfounded disciplinary complaints.” See https://iln.isba.org/blog/2016/12/15/isba-assembly-oks-futures-report-approves-ube-and-collaborativelaw-proposals

Key objections I have to Proposed Rule 8.4(g) include:

Overbreadth and vagueness. The Rule regulates not only the practice of law itself but any “conduct related to the practice of law.” The vague term “related” entails a sweeping grant of authority to the Bar to regulate conduct in what most consider non-professional settings. Comment 4 states that the Rule would reach “social activities in connection with the practice of law,” and it could go much further. And because Comment 3 includes “verbal conduct” within the Rule, that authority will reach the personal, political, moral, and religious speech of Bar members in non-professional situations. Professor Rotunda illustrates how the Rule affects lawyers with a hypothetical: “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.’ …. The lawyer has just violated the ABA rule by manifesting bias based on socioeconomic status.” (Rotunda, The ABA’s Control Over What Lawyers Say Around the Water Cooler.”) In practice, mainstream viewpoints will be tolerated while unpopular ones will trigger Bar complaints, investigations, and possible discipline—all potentially ruinous to one’s career.

Viewpoint discrimination. Professor Volokh calls the Rule “overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express contrary viewpoints, you’re risking disciplinary action.” (Volokh, A Speech Code for Lawyers.) Attorneys with certain views on political or social issues risk having their speech chilled or outright suppressed. This is quite concerning.

Threatens freedom of religion. The Texas Attorney General reads Rule 8.4(g) to mean that it “could also be applied to restrict an attorney’s religious liberty and prohibit an attorney from zealously representing faith-based groups.” (Letter from Paxton, at 4.) I agree.

Please reject proposed Rule 8.4(g).

I oppose the proposed rule as drafted. Guarding against invidious discrimination within the Utah Bar is important. Fortunately, existing rules and norms already work well to achieve that end. After associating with numerous lawyers across the country, including many in major firms on both coasts, I can confidently say that Utah’s lawyers are among the most civil and professional in the country. While there are diverse beliefs and robust debates among us regarding social, moral, political and religious issues, I have never encountered a Utah attorney that engages in invidious discrimination. The proposed rule is a solution in search of a problem.

Please consider two related concerns. First, there is no question the proposed rule regulates speech. As the official Comments that guide enforcement of the proposed rule confirm, prohibited “discrimination includes harmful verbal . . . conduct that manifests bias or prejudice.” “Verbal conduct” is a euphemism for speech and expression. If the regulation were narrowly confined to harassing speech within the professional workplace or in the administration of justice, where standards and expectations are well defined and understood, there would be less cause for concern. But the notion of speech “that manifests bias or prejudice” is dangerously ambiguous in this context. It seems to include speech that evinces allegedly bad personal beliefs, thoughts, or feelings, as opposed to speech that is objectively bigoted. Among other defects, this ambiguity creates a troubling selective-enforcement problem. Suppose an attorney is said to hold allegedly biased or prejudiced beliefs but his speech in a particular instance could be interpreted as either innocent or biased. Will his known beliefs result in the bar’s concluding that his speech was biased, whereas another attorney with allegedly unbiased beliefs might speak the identical words and escape any censure or damage to her reputation? Lack of objectivity opens the door for censoring speech merely because it expresses or is motivated by unpopular beliefs.

Second, the regulation of speech extends beyond the actual practice of law and administration of justice. This dramatically compounds the problem with lack of objectivity and clarity. Members of the bar are well versed in what constitutes harassing speech in the workplace or inappropriately biased speech in a court or other legal setting. Existing laws, ethical standards and judges already ensure these boundaries are well policed. But as the Comments confirm, “[c]onduct [including ‘verbal conduct,’ i.e., speech] related to the practice of law includes” not only “representing clients” and other formal aspects of law practice but also “participating in bar association, business or social activities in connection with the practice of law.” Terms like “related to” or “in connection with” are extremely broad and do not provide meaningful limits, much less fair notice. The combination of the standard’s ambiguity, the broad scope of its application, the inherently subjective nature of determining what speech “manifests bias or prejudice,” and the risk of severe damage to one’s reputation and law practice from even a bar complaint guarantees that the proposed rule will chill the fundamental free-speech rights of Utah’s lawyers.

As others have noted, proposed Rule 8.4(g) has attracted criticism from politically diverse experts, including Professors Eugene Volokh and Ronald Rotunda. Everywhere it has been considered, proposed Rule 8.4(g) has been the subject of deep concern among many upstanding members of the bar. Rules of professional conduct should be matters of consensus among bar members, not the cause of fear and disunity. When Stephen Gillers, a proponent of the proposed rule and expert in legal ethics at NYU Law School, flatly states that proposed Rule 8.4(g) “subordinates the right to speak in order to protect the fairness of and public confidence in the legal system,” such fears cannot be dismissed as irrational. (See Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 GEO. J. L. ETHICS 195, 235 (2017).)

I respectfully urge the Supreme Court of Utah to reject the proposed rule and instead use the ample professional and ethical tools that already exist to deal with any instances of invidious bias or prejudice within the profession. At a minimum, the Court should make perfectly clear that the proposed rule will not be interpreted to abridge established rights. Language such as the following would help achieve that end and address other troubling problems raised by the proposed rule:

“This paragraph shall not be interpreted to infringe upon, limit, or chill rights protected by the First Amendment to the United States Constitution or the Utah Constitution, or to require an attorney or law firm to undertake representation on behalf of an issue or cause to which the attorney or law firm is opposed on ideological, political, social, moral or religious grounds or which would conflict with or impair the interests of the attorney’s or law firm’s existing clients.”

Respectfully submitted.

I should also note that the rule would be vastly broad than most of the rules adopted in other states. The proposed rule goes well beyond the current Utah Rule of Professional Conduct 8.4, which generally bars “conduct” (which may well include discrimination and harassment) “that is prejudicial to the administration of justice.” Likewise, rules in many other states bar discrimination and harassment when they are “prejudicial to the administration of justice.” See, e.g., Ariz. Rules of Prof. Conduct 8.4 Comment.

Courts can legitimately protect the administration of justice from interference, even by, for instance, restricting the speech of lawyers in the courtroom or in depositions. But the proposal deliberately goes vastly beyond such narrow restrictions, to apply even to “social activities.”

Indeed, I have found only two states, Indiana and New Jersey, that forbid lawyer speech that “manifests bias or prejudice” or speech that is “derogatory or demeaning” outside the special context of speech in courtrooms, depositions, negotiations, and the like — interactions that are indeed likely to directly interfere with the administration of justice. See Ind. Rule Prof. Conduct 8.4(g); N.J. Rule Prof. Conduct 8.4 official comment. (Compare, e.g., Mass. R. Sup. Jud. Ct. 3.4(i) and Wash. R. Prof. Conduct 8.4(h), which forbid such speech only within such litigation or negotiation processes.) And even the Indiana and New Jersey rules do not go so far as to cover “social activities related to the practice of law.”

The proposal also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself poses potential First Amendment problems if applied too broadly. See, e.g., DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir. 1995) (“Where pure expression is involved, Title VII steers into the territory of the First Amendment.”) (dictum); Rodriguez v. Maricopa County Comm. Coll. Dist., 605 F.3d 703 (9th Cir. 2010) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”). And in any event, it is substantially narrower than the proposed rule: For instance, harassment law generally does not cover social activities at which coworkers are not present — yet under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.

Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the statement in the ABA comments that “anti-harassment … case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision says only that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of the comments (which, again the Utah State Bar petition expressly adopts and endorses) seems to cover any “harmful verbal … conduct,” including isolated statements.

Many people pointed out possible problems with this proposed rule, which is based on the ABA’s new Model Rule, when the ABA was considering it — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. It seems that the ABA and the Utah State Bar wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that the ABA and the Bar dislikes.

Rather than repeat much of what has already been written, I write merely to say that join with my fellow members of the Utah State Bar in opposition to this proposed rule.

THE SUPREME COURT OF UTAH

IN RE: PROPOSED ADOPTION OF )
ABA MODEL RULE OF )
PROFESSIONAL CONDUCT 8.4(g) )

Joint Comment Opposing Adoption of ABA Model
Rule of Professional Conduct 8.4(g)

This Joint Comment, submitted by Utah licensed attorneys, opposes Utah’s adoption of new ABA Model Rule 8.4(g) and Comments thereto, for the reasons set forth herein.
I. The Rule
A. Utah’s Current Rule
Utah’s current Rule of Professional Conduct 8.4 provides, in pertinent part, as follows:
It is professional misconduct for a lawyer to: . . . (d) engage in conduct that is prejudicial to the administration of justice.
Comment [3] 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 forgoing 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.

B. The New Model Rule 8.4(g) and Comments
Adopting the new ABA Model Rule 8.4(g) would amend Utah Rule 8.4 by adding an entirely new subsection (g) and comments, which read:
It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
Comment [3] – Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
Comment [4] – Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.
Comment [5] – A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). 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 also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation 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 the lawyer of the client’s views or activities. See Rule 1.2(b).

II. The Objections
A. The New Rule Is Unconstitutional.
1. Attorney Speech is Constitutionally Protected
There is no question but that citizens do not surrender their First Amendment speech rights when they become attorneys. Indeed, the ABA itself recently acknowledged this in an amicus brief it filed in the case of Wollschlaeger, et al. v. Governor of the State of Florida, et al. (11th Circuit). 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.” In support of its position, the ABA cited NAACP v. Button, 371 U.S. 415 (1963) for the proposition that “notwithstanding the State’s ‘interest in the regulation of the legal profession,’ a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”
In short, attorneys do not surrender their constitutional rights when they enter the legal profession, and the state may not ignore attorneys’ constitutional rights under the guise of professional regulation.

2. Many Authorities Have Expressed Concerns About The Constitutionality Of The New Model Rule
Many authorities have pointed out constitutional infirmities of the new Model Rule.
When the ABA opened up the new Model Rule for comment, a total of 481 comments were filed – and of those 481 comments, 470 of them opposed the new Rule, many on the grounds that the new Rule would be unconstitutional.
Indeed, the ABA’s own Standing Committee on Attorney Discipline, as well as the Professional Responsibility Committee of the ABA Business Law Section, warned the ABA that the new Rule may violate attorneys’ First Amendment speech rights.
And prominent legal scholars, such as UCLA constitutional law professor Eugene Volokh and former U.S. Attorney General Edwin Meese, III, have opined that the new Rule is constitutionally infirm. “A Speech Code for Lawyers, Banning Viewpoints that Express ‘Bias,’ Including in Law-Related Social Activities,” Eugene Volokh, The Washington Post, August 10, 2016 and http://firstliberty.org/wp-content/uploads/2016/08/ABA-Letter_08.08.16.pdf.
Attorney General Meese wrote that the new Rule constitutes “a clear and extraordinary threat to free speech and religious liberty” and “an unprecedented violation of the First Amendment.” http://firstliberty.org/wp-content/uploads/2016/08/ABA-Letter_08.08.16.pdf
In addition, the authors of several law review articles have concluded that Model Rule 8.4(g) – and other Rules like it – may violate attorneys’ First Amendment rights. See, for example, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call For Scholarship, Andrew F. Halaby and Brianna L. Long, 41 J. Legal Prof. 201, 2016-2017 (the new Model Rule 8.4(g) has due process and First Amendment free expression infirmities); Reply: A Pause for State Courts Considering Model Rule 8.4(g), The First Amendment and “Conduct Related to the Practice of Law,” Josh Blackman, 30 Geo. J. Legal Ethics 241 (2017)(Model Rule 8.4(g) constitutes an unjustified incursion into constitutionally protected speech); Discriminatory Lawyers In A Discriminatory Bar: Rule 8.4(G) Of The Model Rules Of Professional Responsibility, Caleb C. Wolanek, 40 Harv. J. L. & Pub. Policy 773 (June 2017)(Model Rule 8.4(g) goes too far and implicates the First Amendment). See, also, Lawyers Lack Liberty: State Codification of Comment 3 of Rule 8.4 Impinge On Lawyers’ First Amendment Rights, Lindsey Keiser, 28 Geo. J. Legal Ethics 629 (Summer 2015)(rule violates attorneys’ Free Speech rights) and Attorney Association: Balancing Autonomy and Anti-Discrimination, Dorothy Williams, 40 J. Leg. Prof. 271 (Spring 2016)(rule violates attorneys’ Free Association rights).
In fact, in several states that have already considered adopting the new Model Rule, important professional stakeholders have rejected it. For example, the Illinois State Bar Association has taken an official position opposing the Rule; the Pennsylvania Supreme Court Disciplinary Board is opposing the Rule; and the South Carolina Bar’s Committee on Professional Responsibility is opposing the new Rule stating that the Rule is unconstitutionally vague, unconstitutionally overbroad, and constitutes unconstitutional content discrimination.
Further, the National Lawyers Association’s Commission for the Protection of Constitutional Rights has issued a Statement that ABA Model Rule 8.4(g) would violate an attorney’s free speech, free association, and free exercise rights under the First Amendment to the U.S. Constitution. (With respect to the constitutional issues raised by the new Model Rule, the attorneys filing this Joint Comment agree with the discussion, analysis and conclusions set forth in the National Lawyers Association’s Statement, and have adopted, restated, and in some respects expanded upon much of that discussion and analysis in this Joint Comment.)
In addition, the Montana legislature has adopted a Joint Resolution determining that it would be an unconstitutional act of legislation and violate the First Amendment rights of Montana citizens for the Supreme Court of Montana to enact the ABA Model Rule 8.4(g) in Montana. Senate Joint Resolution 15.
Finally, the Attorneys General of the States of Texas and South Carolina have both issued official Opinions that a court would likely conclude that the ABA Model Rule 8.4(g) constitutes an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys, is unconstitutionally overbroad, and void for vagueness. Opinion No. KP-0123, Attorney General of Texas, December 20, 2016; 14 SC AG Opinion, May 1, 2017.
3. The New Model Rule is Unconstitutionally Vague: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Vague laws offend several important values, among which are the following:
First, due to the fact that we assume that people are free to steer between lawful and unlawful conduct, we insist that laws give people of ordinary intelligence a reasonable opportunity to know what is prohibited, so that they may act accordingly. Vague laws may trap the innocent by not providing fair warning. Grayned, supra, at 108.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to state agents for enforcement on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned, supra, at 108-109.
And third, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Grayned, supra, at 109.
The language of the new Model Rule 8.4(g) violates all these principles.
(a) The Term “Harassment” is Unconstitutionally Vague. The new Model Rule prohibits attorneys from engaging in harassment on the basis of any of the protected classes. But the term “harassment” is not defined in the Rule, is subject to varied interpretations, and no standard is provided to determine whether conduct is or is not harassing.
Does expressing disagreement with someone’s religious beliefs constitute harassment based on religion? Can merely being offended by an attorney’s conduct or expressions constitute harassment? Can a single act constitute harassment, or must there be a series of acts? In order to constitute harassment, must the offending behavior consist of words, or could body language constitute harassment?
Many courts have expressly determined that the term “harass” is unconstitutionally vague. See, for example, Kansas v. Bryan, 910 P.2d 212 (Kan. 1996)(holding that the term “harasses,” without any sort of definition or objective standard by which to measure the prohibited conduct, was unconstitutionally vague). See also Are Stalking Laws Unconstitutionally Vague or Overbroad, 88 Nw. U. L. Rev. 769, 782 (1994)(the definition of “harass” is a constitutionally problematic provision due to the vagueness of the term “harass.”).
Because the term “harassment” as used in the new Rule is vague, it presents all three problems condemned by the U.S. Supreme Court – (1) it does not provide attorneys with sufficient notice as to what behavior is proscribed; (2) it allows those charged with enforcing the Rules of Professional Conduct to enforce the Rule arbitrarily and selectively; and (3) its vagueness will chill the speech of attorneys who, not knowing where harassment begins and ends, will be forced to censor their free speech rights in an effort to avoid inadvertently violating the Rule.
But it gets worse. Comment [3] to the new Rule provides that harassment includes derogatory or demeaning verbal or physical conduct. What exactly is encompassed by the words “derogatory” and “demeaning”? Courts have found these terms to be unconstitutionally vague. Hinton v. Devine, 633 F.Supp. 1023 (E.D. Pennsylvania 1986)(the term “derogatory” without further definition is unconstitutionally vague); Summit Bank v. Rogers, 206 Cal.App.4th 669 (Cal.App. 2012)(statute prohibiting statements that are “derogatory to the financial condition of a bank” is facially unconstitutional due to vagueness).
(b) The Term “Discrimination” is Unconstitutionally Vague. 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 Rule – merely prohibit “discrimination” and leave it at that. Rather, they spell out what specific behavior constitutes discrimination.
For example, Title VII does not merely provide that it shall be an unlawful employment practice for an employer to discriminate against persons on the basis of race, color, religion, sex, or national origin. Rather, Title VII sets forth in detail what employers are prohibited from doing. Title VII provides that “It shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive, or tend to deprive, any individual of employment opportunities or otherwise adversely affect his status as an employee, on the basis of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2.
Likewise, the federal Fair Housing Act does not simply provide that one may not discriminate in housing based on race, color, religion, familial status, or national origin. It provides a description of what, specifically, is being prohibited: “[I]t shall be unlawful (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. . . (d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. (e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.” 42 U.S.C. § 3604. And the Act provides precise definitions of important terms used in the Act, such as “dwelling,” “person,” “to rent,” and “familial status.” 42 U.S.C. § 3602.
Unlike other non-discrimination enactments, however, the new Model Rule simply states that “It is professional misconduct for a lawyer to: . . . (g) knowingly . . . discriminate against persons, on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law” – leaving to the attorney’s imagination what sorts of behavior might be encompassed in that proscription.
Indeed, Model Comments [3] to the Model Rule 8.4(g) states that the term “discrimination” includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.” The term “harmful” – in the context of attorney speech and conduct – is unconstitutionally vague because attorneys cannot determine with any degree of reasonable certainty what speech and conduct may be included or excluded from that category of speech or conduct.
(c) The Phrase “conduct related to the practice of law” is Unconstitutionally Vague.
Whereas the current Rule applies only to attorney conduct while the attorney is representing a client – a relatively narrow and reasonably determinable aspect of a lawyer’s activities – the new Rule applies to any conduct of an attorney that is in any way “related to the practice of law.” What conduct is related to the practice of law and what conduct is unrelated to the practice of law, however, is vague and not easily or readily determinable.
Comment [4] attempts to provide guidance as to what the phrase “related to the practice of law” means. But not only is the Comment’s definition nearly limitless, including within it representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law, but it also an explicitly non-exclusive list. So who can say with any degree of certainty where conduct related to the practice of law ends? For example, does the phrase include comments made by an attorney while attending a birthday celebration for a law firm co-worker; or a statement made by an attorney at a cocktail party the attorney is attending, at least in part, in order to make connections that will hopefully result in future legal work; or comments an attorney makes while teaching a religious liberty class at the attorney’s church?
Because no attorney, with any degree of certainty, can determine what behavior is or is not “related to the practice of law,” the new Rule is unconstitutionally vague.

If attorneys face professional discipline for engaging in certain proscribed behavior, they are entitled to know precisely what behavior is being proscribed, and should not be left to guess what the proscription might encompass. Anything less is a deprivation of due process.
Because of the vagueness of several of the Rule’s important terms, the new Model Rule is unconstitutional.

4. The New Model Rule is Unconstitutionally Overbroad.
Even if an enactment is otherwise clear and precise in what conduct it proscribes, the law may nevertheless still be unconstitutionally overbroad if its reach prohibits constitutionally protected conduct. Grayned, supra, at 114.
It is clear that the new Model Rule is not only unconstitutionally vague, it is also unconstitutionally overbroad because, although it may apply to attorney conduct that might be unprotected – such as conduct that actually prejudices the administration of justice or that would clearly render an attorney unfit to practice law – Model Rule 8.4(g) would also sweep within its orbit lawyer speech that is clearly protected by the First Amendment, such as speech that might be offensive, disparaging, or hurtful but that would not prejudice the administration of justice nor render the attorney unfit.
It does not take a constitutional scholar to recognize that “harmful verbal conduct” and “derogatory or demeaning verbal conduct” sweep into their ambit speech that is clearly constitutionally protected. Speech is not unprotected merely because it is harmful, derogatory or demeaning. In fact, offensive, disagreeable, and even hurtful speech is exactly the sort of speech the First Amendment protects. Snyder v. Phelps, 562 U.S. 443, 458 (2011). See also, Texas v. Johnson, 491 U.S. 397, 414 (1989)(“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 Joseph Matal, Interim Director, United States Patent And Trademark Office v. Simon Shiao Tam, 582 U.S. ____ (2017)(the government’s attempt to prevent speech expressing ideas that offend strikes at the heart of the First Amendment).
And courts have found terms such as “derogatory” and “demeaning” unconstitutionally overbroad. Hinton v. Devine, supra (the term “derogatory information” is unconstitutionally overbroad); Summit Bank v. Rogers, supra (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 v. State College Area School Dist., 240 F.3d 200, 215 (3rd Cir. 2001)(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).
The broad reach of the new Rule is well illustrated by the example that Senior Ethics Counsel Lisa Panahi and Ethics Counsel Ann Ching of the Arizona State Bar give in their article “Rooting Out Bias in the Legal Profession: The Path to ABA Model Rule 8.4(g), ” Arizona Attorney, January 2017, page 34. They state that an attorney could be professionally disciplined under the new Rule for telling an offensive joke at a law firm dinner party. Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, Ronald Rotunda, provides another example of the broad reach of the new Rule. He writes: “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.” The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Ronald D. Rotunda, Legal Memorandum No. 191, The Heritage Foundation, October 6, 2016, p. 4
But the speech in both these examples would clearly be constitutionally protected. The fact that such constitutionally protected speech would violate the new Rule demonstrates that the new Rule is unconstitutionally overbroad.
And it is irrelevant whether such speech would ever actually be prosecuted by disciplinary authorities under the new Rule. The fact that a lawyer could be disciplined for engaging in such speech would, in and of itself, chill lawyers’ speech – the very danger the overbreadth doctrine is designed to prevent.
For these reasons, the new Model Rule would not pass constitutional muster.

5. The New Model Rule Will Constitute An Unconstitutional Content-Based Speech Restriction.
By only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule will constitute an unconstitutional content-based speech restriction. American Freedom Defense Initiative v. Metropolitan Transp. Authority, 880 F.Supp.2d 456 (S.D.N.Y. 2012)(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 new Model Rule. In Matal v. Tam, supra, the Court found that a Lanham Act provision prohibiting the registration of trademarks that may “disparage” or bring a person “into contempt or disrepute” to be 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.” In a concurring opinion, Justice Kennedy described the constitutional infirmity of the disparagement provision as “viewpoint discrimination” – “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” 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.” Likewise, under the new ABA Model Rule 8.4(g), attorneys may engage in positive or benign speech, but not “derogatory,” “demeaning,” or “harmful” speech. Under the Supreme Court’s Tam decision, this is the essence of viewpoint discrimination, and presumptively unconstitutional.
Professor Rotunda provides a concrete example of how the new ABA Rule may constitute an unconstitutional content-based speech restriction. He explains: “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.” The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Ronald D. Rotunda, Legal Memorandum No. 191, The Heritage Foundation, October 6, 2016, p. 4.
In other words, whether a lawyer has or has not violated the Rule will be determined solely by reference to the content of the attorney’s speech. Under the Rule, a lawyer who speaks against same-sex marriage may be in violation of the Rule for engaging in speech that constitutes discrimination on the basis of sexual orientation, while a lawyer who speaks in favor of same-sex marriage would not be. That is a classic example of an unconstitutional content-based speech restriction.
Indeed, in some states that have modified their Rules in ways similar to the new Model Rule, such Rules are already being enforced as free-standing speech codes. See, for example, In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Indiana Supreme Court 2010), in which an Indiana attorney was professionally disciplined merely for asking someone if they were “gay”; and In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Indiana 2010) in which an attorney had his license suspended for applying a racially derogatory term to himself.

6. The New Model Rule Will Violate Attorneys’ Free Exercise of Religion and Free Association Rights.
The new Rule will also violate an attorney’s free exercise of religion and freedom of association rights. As an illustration of this problem, Professor Rotunda posits 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 explains 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. Indeed – he points out – attorneys might be in violation of the new Rule merely for being members of such an organization. The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Ronald D. Rotunda, Legal Memorandum No. 191, The Heritage Foundation, October 6, 2016, pp. 4-5. But, clearly, that speech and an attorney’s membership in such an organization are both constitutionally protected. The fact that the Rule may prohibit either indicates that the Rule will be unconstitutional.
Because the new Model Rule is clearly unconstitutional, it should be rejected.

B. Only One State Has Adopted A Version Of The New Model Rule. The Supreme Court of South Carolina Has Expressly Rejected It.
Vermont is the only state to have adopted a version of the new Model Rule, while the South Carolina Supreme Court has expressly rejected it. Order, Supreme Court of South Carolina, Appellate Case No. 2017-000498 (6-20-2017).
In fact, the majority of states have no black letter anti-discrimination rule in their Rules of Professional Conduct at all. And in those states that do have black letter anti-discrimination provisions in their Rules, no state’s rule (other than Vermont’s) is even comparable to the new Model Rule.
For example, aside from Vermont, none of the jurisdictions with black letter anti-discrimination rules extends its non-discrimination rule to “conduct related to the practice of law” – as the new Model Rule does. Seven of those jurisdictions limit their coverage to conduct “in the representation of a client” or “in the course of employment” after having been retained (Florida, Idaho, Nebraska, Missouri, North Dakota, Oregon and Washington State). Eight states limit the applicability of their non-discrimination rules to conduct toward other counsel, litigants, court personnel, witnesses, judges, and others involved in the legal process (Colorado, Florida, Idaho, Michigan, Nebraska, and Washington State). California limits its provision to “the management and operation of a law practice.” Massachusetts, New Jersey and Ohio limit their Rules to conduct “in a professional capacity.” Massachusetts limits its Rule to conduct “before a tribunal.” New York limits its Rule to “the practice of law.” And D.C. limits its Rule to employment discrimination only.
Likewise, other than Vermont, no state’s rule prohibits – as the new Model Rule does – “harmful,” “derogatory,” or “demeaning” speech or conduct.
Further, eight states (California, Iowa, Minnesota, New Jersey, New York, Illinois, Ohio, and Washington State) limit their anti-discrimination rules to “unlawful” discrimination or discrimination “prohibited by law.” Indeed, of those eight states, half of them (California, Illinois, New Jersey, and New York) actually require that, before any disciplinary claim can even be filed, a tribunal of competent jurisdiction other than a disciplinary tribunal must have found that the attorney has actually violated a federal, state, or local anti-discrimination statute or ordinance.
And unlike the new Model Rule, eight of the states with black letter anti-discrimination rules require that the alleged discrimination actually either prejudice the administration of justice or render the attorney unfit to practice law (Florida, Illinois, Maryland, Minnesota, Nebraska, North Dakota, Rhode Island, and Washington State).
Further, unlike the Model Rule – which has a “know or reasonably should know” standard – four states with black letter rules require the discriminatory conduct to be “knowing,” “intentional” or “willful” (Maryland, New Jersey, New Mexico, and Texas).
Michigan’s “non-discrimination” rule is more of a civility rule, prohibiting only “discourteous” or “disrespectful” conduct.
And, unlike the new Model Rule, Texas expressly excludes from its anti-discrimination rule a lawyer’s decisions whether or not to represent a particular person.
So, should Utah adopt the new Model Rule, it will have adopted a Rule that impinges on attorney conduct in ways, and far more extensively, than almost any other state has seen fit to do.
There are good reasons no state other than Vermont has adopted a Rule like the new ABA Model Rule – and good reasons why the South Carolina Supreme Court has expressly rejected it. Utah would be wise to reject the new Model Rule as well.

C. The New Model Rule Would, For The First Time, Sever The Rules From Any Legitimate Interests Of The Legal Profession.
The legal profession has a legitimate interest in proscribing attorney conduct that – if not proscribed – would either adversely affect an attorney’s fitness to practice law or that would prejudice the administration of justice. Utah’s current Rule 8.4 recognizes this principle by prohibiting attorneys from engaging in six types of conduct, all of which might either adversely impact an attorney’s fitness to practice law or would prejudice the administration of justice. Those types of conduct are:
(a) Violating the Rules of Professional Conduct;
(b) Committing criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engaging in conduct that is prejudicial to the administration of justice;
(e) Stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; and
(f) Knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
The first proscribed conduct – violating the Professional Conduct Rules – is self-explanatory and obvious, since the Rules are enacted for the precise purpose of regulating the conduct of attorneys as attorneys. The Rules would hardly serve their purpose if an attorney’s violation of them did not constitute professional misconduct.
The second and third proscriptions are targeted at attorney conduct which directly impacts the attorney’s ability to be entrusted with the professional obligations with which all attorneys are entrusted – namely, to serve their clients and the legal system with honesty and trustworthiness. But – revealingly – those Rules do not proscribe conduct that, although perhaps not praiseworthy, does not warrant the conclusion that the attorney engaging in such conduct is unfit to practice law. Indeed, it is worth noting that Rule 8.4(b) does not even conclude that all criminal conduct is a violation of the Rules of Professional Conduct. Instead, the Rule proscribes only criminal conduct “that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” As Comment [2] to Utah’s Rule 8.4 explains: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. . . Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.” (our emphasis).
The fourth type of proscribed conduct is conduct that would prove prejudicial to the administration of justice. Historically, conduct falling within the parameters of this proscription has been limited to misconduct that would seriously interfere with the proper and efficient functioning of the judicial system. For example, the Supreme Court of Oregon analyzed this provision and determined that prejudice to the administration of justice referred to actual harm or injury to judicial proceedings. See, for example, In re Complaint as to the Conduct of David R. Kluge, 66 P.3d 492 (Or. 2003), which held that to establish a violation of this Rule it must be shown that the accused lawyer’s conduct occurred during the course of a judicial proceeding or a proceeding with the trappings of a judicial proceeding. And in In re Complaint as to the Conduct of Eric Haws, 801 P.2d 818, 822-823 (Or. 1990), the court noted that the Rule encompasses attorney conduct such as failing to appear at trial; failing to appear at depositions; interfering with the orderly processing of court business, such as by bullying and threatening court personnel; filing appeals without client consent; repeated appearances in court while intoxicated; and permitting a non-lawyer to use a lawyer’s name on pleadings. See also, Iowa Supreme Court Attorney Disciplinary Board v. Wright, 758 N.W.2d 227, 230 (Iowa 2008)(Generally, acts that have been deemed prejudicial to the administration of justice have hampered the efficient and proper operation of the courts or of ancillary systems upon which the courts rely); Rogers v. The Mississippi Bar, 731 So.2d 1158,1170 (Miss. 1999)(For the most part this rule has been applied to those situations where an attorney’s conduct has a prejudicial effect on a judicial proceeding or a matter directly related to a judicial proceeding); In re Hopkins, 677 A.2d 55, 60-61 (D.C.Ct.App. 1996)(In order to be prejudicial to the administration of justice, an attorney’s conduct must (a) be improper, (b) bear directly upon the judicial process with respect to an identifiable case or tribunal, and (c) must taint the judicial process in more than a de minimus way, that is, at least potentially impact upon the process to a serious and adverse degree); and In re Karavidas, 999 N.E.2d 296, 315 (Ill. 2013)(In order for an attorney to be found guilty of having prejudiced the administration of justice, clear and convincing proof of actual prejudice to the administration of justice must be presented). Therefore, this provision, too, is directed at attorney conduct that exposes the judicial process itself to serious harm.
And the last two proscription in Utah’s current Rule also targets what is clearly attorney conduct that, if engaged in, would adversely affect the integral operation of the judicial system – namely, improperly influencing a government agency or official or knowingly assisting a judge or judicial officer in conduct that violates the rules of judicial conduct or other law.
In short, Utah’s Rule 8.4 has always – heretofore – been solely concerned with attorney conduct that might adversely affect an attorney’s fitness to practice law or that seriously interferes with the proper and efficient operation of the judicial system.
The new Model Rule 8.4(g), however, takes Rule 8.4 in a completely new and different direction because, for the first time, the new Rule would subject attorneys to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system. Indeed, because the new Rule would not require any showing that the proscribed conduct prejudice the administration of justice or that such conduct adversely affects the offending attorney’s fitness to practice law, the new Rule will constitute a free-floating non-discrimination provision – the only restriction on which will be that the conduct be “related to the practice of law.”
To fully appreciate what this departure from the historic principles of attorney regulation will mean, we need only look to the two Indiana cases cited above – In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Indiana 2010) and In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Indiana 2010). In neither case did the offending conduct have any demonstrable prejudicial effect on the administration of justice or render the attorneys unfit to practice law. It was deemed sufficient that the attorneys had simply used certain offensive language.
Strikingly, if the new Model Rule is adopted, an attorney could actually engage in criminal conduct without violating the Rules (see, for example, Formal Opinion Number 124 (Revised) – A Lawyer’s Use of Marijuana (October 19, 2015)(a lawyer’s use of marijuana, which would constitute a federal crime, does not necessarily violate Colo.R.P.C. 8.4(b))), because Rule 8.4(b) only applies to a lawyer’s “criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” or that involve “moral turpitude,” but could be disciplined merely for engaging in politically incorrect speech.
Such a dramatic departure from the historic regulation of attorney conduct in Utah should not be taken lightly. It would represent an entirely new and precedent-setting intrusion on the professional autonomy, freedom of speech, and freedom of association of Utah’s attorneys…
Because the new Model Rule constitutes an extreme and dangerous departure from the principles and purposes historically underlying Utah’s Rule 8.4 and the legitimate interests of professional regulation, it should be rejected.

D. The New Model Rule Will Invade The Historically Recognized Right And Duty Of Attorneys To Exercise Professional Autonomy In Choosing Whether To Engage In Legal Representation.
The most important decision for any attorney – perhaps the greatest expression of a lawyer’s professional and moral autonomy – is the decision whether to take a case, whether to decline a case, or whether to withdraw from representation once undertaken.
If the new Model Rule 8.4(g) is adopted, however, attorneys will be subject to professional 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 new Rule, attorneys will be affirmatively precluded from declining certain clients or cases. They will, in other words, be forced to take cases or clients they might have otherwise declined.
Proponents of the new Rule contend that the new Rule will not require an attorney to accept any client or case the attorney does not want to accept – pointing to the language of the new Rule that provides: “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”
But Rule 1.16 does not even address the question of what clients or cases an attorney may decline. It only addresses the question of which clients and cases an attorney must decline. What Rule 1.16 addresses are three circumstances in which an attorney is prohibited from representing a client, namely: (a) if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, (b) the lawyer is discharged, or (c) the representation will result in violation of the Rules of Professional Conduct or other law. None of these has anything whatever to do with an attorney’s decision not to represent a client because the attorney does not want to represent the client. It only addresses the opposite situation – namely, in what circumstances an attorney who otherwise wants to represent a client may not do so. So what might appear, to someone unfamiliar with Rule 1.16, to be some sort of safe harbor that would preserve an attorney’s right to exercise his or her discretion to decline clients and cases, is no such thing.
In addition, it is now clear from Vermont’s adoption of the new Model Rule that the Rule will, in fact, apply to an attorney’s client selection decisions. In its Reporter’s Notes to its adoption of the new Rule 8.4(g), the Vermont Supreme Court explicitly states that Rule 1.16’s provisions about declining or withdrawing from representation “must also be understood in light of Rule 8.4(g)” so that refusing or withdrawing from representation “cannot be based on discriminatory or harassing intent without violating that rule.” In other words, if an attorney declines or withdraws from representation for an allegedly discriminatory reason, the attorney violates Rule 8.4(g).
This is another 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, the Rule 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.”).
There are, of course, good reasons why the profession has left to the attorney the professional decision as to which cases the attorney will accept and which the attorney will decline and which clients the attorney will or will not represent. The reasons underlying this historically longstanding respect for attorneys’ professional autonomy are twofold.
First, the Rules themselves respect an attorney’s personal ethics and moral conscience. See, for example, Rule Preamble [7] (“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 [9] (“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. The Rules have never – until perhaps now – done so.
And second, the Rules impose upon attorneys a professional obligation to represent their clients zealously (Rule 1.3, Comment [1]), and without personal conflicts (Rule 1.7(a)(2)). A lawyer’s ability to do that, however, would be compromised should the lawyer have personal or moral objections to a client or a client’s case
In the same vein Rule 1.16(b)(4) recognizes that a lawyer may withdraw from representing a client if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
And as noted above, although Rule 6.2 prohibits attorneys from seeking to avoid accepting cases that are appointed to them by judicial tribunals, the Rule explicitly recognizes that good cause to refuse such appointments includes the situation where the client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client (Rule 6.2(c)) – an acknowledgement in the Rules themselves that a lawyer’s personal view of a client or a case can be expected to adversely affect the attorney’s ability to provide zealous and effective representation.
To force an attorney to accept a client or case the attorney does not want, and then require the attorney to provide zealous representation to that client, is both unfair to the attorney – because doing so places conflicting obligations upon the lawyer – and to the client, 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 (see, for example, 1.7(a)(2), which prohibits an attorney from representing a client if there is a significant risk that the representation will be materially limited by a personal interest of the lawyer).
It must be admitted that human nature is such that an attorney who – for whatever reason – has an aversion to a client or a case will not be able to represent that client or case as well as could an attorney who has no such aversion. For that reason, recognizing an attorney’s unfettered freedom to choose which clients and cases to accept and which to decline serves the best interests of the client.
This is not only a self-evident principle, in conformance with universal human experience, but is also well attested in the lives of some of our greatest lawyers. For example, it was well known that Abraham Lincoln was not an effective lawyer unless he had a personal belief in the justice of the case he was representing. “Fellow lawyers testified that Mr. Lincoln needed to believe in a case to be effective.” An Honest Calling: The Law Practice of Abraham Lincoln, Mark A. Steiner, Northern Illinois University Press (2006).
Indeed, as noted above, the Rules themselves recognize this principle in that Rule 6.2(c) itself recognizes that a client or cause that is repugnant to the attorney may impair the lawyer’s ability to represent the client.
Should a gay attorney be forced to represent the Westboro Baptist Church? Should an African American attorney be forced to represent a member of the KKK? Should a Jewish lawyer be forced to represent a neo-Nazi? And, if so, would these attorneys be able to provide zealous representation to these clients? To pose these questions is sufficient to answer them, in the negative. And yet that is exactly what the new Model Rule would do. (If you doubt this, ask yourself whether, under the new Model Rule, an adoption attorney who has sincerely held religious beliefs against same-sex couples adopting children, would be allowed – for that reason – to decline representation of same-sex couples seeking to adopt, or whether the attorney, by declining that representation, would be held to have discriminated against the same-sex couple on the basis of sexual orientation? We think the answer is obvious, and that proponents of the Rule would admit that such an attorney would be in danger of professional prosecution under the new Rule.)
For these reasons, too, Model Rule 8.4(g) should be rejected.

E. The New Model Rule Conflicts with Other Professional Obligations and Rules of Professional Conduct.
Another significant problem with the new Model Rule 8.4(g) is that it conflicts with other professional obligations and Rules of Professional Conduct. For example:
1. Rule 1.7 Conflicts of Interest – Rule 1.7 provides that: “(a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer” (our emphasis).
And Restatement (Third) of the Law Governing Lawyers §125 (2000) clarifies that: “A conflict under this Section need not be created by a financial interest. . . Such a conflict may also result from a lawyer’s deeply held religious, philosophical, political, or public-policy belief” (our emphasis).
So – on the one hand the new Rule appears to require an attorney to accept clients and cases, despite the fact that such clients or cases might run counter to the attorney’s deeply held religious, philosophical, political, or public policy principles; while at the same time Rule 1.7 provides that accepting a client or a case – when the client or case runs counter to the attorney’s beliefs – would violate Rule 1.7’s Conflict of Interest prohibitions!
How is that conflict to be resolved?
2. Rule 1.3. Rule 1.3 requires that a lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. Rule 1.3, Model Comment [1].
“Zeal” means “a strong feeling of interest and enthusiasm that makes someone very eager or determined to do something.” Synonyms are “passion” and “fervor”. Merriam-Webster.com.
But how would an attorney be able to zealously represent a client whose case runs counter to the attorney’s deeply held religious, political, philosophical, or public policy beliefs?
Under the new Model Rule, the attorney may not be allowed to reject a case or client she might otherwise reject – due to the attorney’s personal beliefs – but then must also represent that client with passion and fervor, enthusiastically and in an eager and determined manner.
Is that humanly possible? We would submit that it is not. And we believe that is exactly why the Rules provide that, if a lawyer cannot do that – for whatever reason – even a discriminatory one – they should not take the case.
How is that conflict to be resolved?
3. Rule 6.2 Accepting Appointments: Rule 6.2 provides that “A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause: such as: . . . (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client” (our emphasis).
Although this Rule is technically applicable only to court appointments, it’s important to what we’re discussing here because it contains a principle that should be equally – if not more – applicable to an attorney’s voluntary client-selection decisions. Namely, the Rule recognizes that a client or cause may be so repugnant to a lawyer that the lawyer-client relationship would be impaired or the lawyer’s ability to represent the client be adversely affected.
Indeed, Model Comment [1] to Rule 6.2 sets forth this general principle that “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”
Note that Rule 6.2 does not concern itself with why the attorney finds the client or cause repugnant – because that’s irrelevant. The only relevant issue is whether the attorney – for whatever reason – cannot provide the client with zealous representation because the lawyer finds the client or cause repugnant. If not, the attorney must not – for the client’s sake – take the case. Clients deserve that.
4. Rule 1.16: Declining or Terminating Representation.
Rule 1.16(a)(1) provides that: (a) . . . a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in the violation of the rules of professional conduct or other law.
However, we’ve already seen that Rule 1.7 would prohibit an attorney from representing a client who – due to the lawyer’s personal beliefs – the lawyer could not represent without a personal conflict of interest interfering with that representation. To do so would constitute a violation of the Rules of Professional Conduct. But Vermont’s adoption of the new Rule confirms that the new Rule will require attorneys to accept clients and cases that – due to the attorney’s personal beliefs about the client or the case – the attorney would otherwise have to decline.
So, this Rule too is in conflict with the new Rule.
Which Rule is going to prevail when they conflict?

Indeed, the fact that the new Model Rule conflicts with other Professional Rules reveals and highlights a basic problem with the proposed Rule – and that is that the proposed Rule is an attempt to impose upon the legal profession a non-discrimination construct that is, in its basic premises, inconsistent with who attorneys are and what they professionally do. It is an attempt to force a round peg into a square hole.
In considering the new Rule, we must remember that the non-discrimination template on which the new Rule is based is taken from the context of public accommodation laws – non-discrimination laws that are imposed in the context of merchants and customers – where a merchant sells a product or service to a customer who the merchant does not know and will probably never see again. A transient and impersonal commercial transaction.
But attorneys are not mere merchants, and clients are not mere customers.
Unlike mere merchants – who usually have only distant impersonal commercial relationships with their customers – attorneys have fiduciary relationships with their clients.
Attorneys are made privy to the most confidential of their client’s information, and are bound to protect those confidentialities. That’s not true between a merchant and a customer.
Attorneys are bound to take no action that would harm their clients. That is not true between a merchant and a customer.
And an attorney’s relationship with his or her clients is often a long-term relationship, oftentimes lasting months, or even years. That is rarely true between a merchant and a customer.
And once an attorney is in an attorney-client relationship, unlike a merchant the attorney oftentimes may not unilaterally sever that relationship.
So it’s one thing to say a merchant may not pick and choose his customers. It’s entirely another to say a lawyer may not pick and choose her clients.
No lawyer should be required to enter into what is, by definition, a fiduciary, and what could turn out to be a long-term, relationship with a client the attorney does not want – whatever the reason.
Because the effect of adopting the new Model Rule 8.4(g) would be to impose professional obligations upon Utah’s lawyers that conflict with other professional rules, and that are incompatible with the very nature of the attorney-client relationship, the new Model Rule 8.4(g) should be rejected.