Maine recently became the second U.S. state to adopt the American Bar Association’s controversial revised rule on lawyer misconduct that includes a section prohibiting harassment and discrimination.
Maine’s amendment to its existing rule added section 8.4(g), and “is intended to dispel uncertainty as to what conduct is prohibited,” the rule’s guidance section said. The changes adopted by the Maine Supreme Judicial Court went into effect June 1.
Stories of harassment and discrimination in the workplace have been in the public eye for several years. The legal industry has had to face its own reckoning, as judges and law firm leaders have been accused of inappropriate conduct.
But some have said the ABA rule attempting to address misconduct in the legal industry also has the potential to chill free speech. A number of states including Arizona, Tennessee, and Illinois have rejected moves to adopt it.
Maine’s newly adopted Rule 8.4(g) says that any conduct or communication related to the practice of law that a lawyer “knows or reasonably should know” is harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity is professional misconduct.
It’s almost identical to the controversial ABA Rule 8.4(g), which was passed in 2016. Both rules define harassment as “derogatory or demeaning” conduct.
Critics say the rules could be unconstitutional.
“Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as ‘demeaning’ to others,” Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. “The government should not chill attorneys from talking about these important matters.”
But New York University School of Law legal ethics professor Stephen Gillers disagreed.
“The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,” Gillers said in an email. “It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.”
There are some differences between the ABA’s version of the rule and Maine’s. The state’s rule omits marital status and socioeconomic status as types of discrimination, which are included in the ABA’s version.
The state rule also differs from the ABA rule in its definition of “related to the practice of law” because it omits social activities in connection with the practice of law such as bar association meetings.
But these changes are “peripheral to the focus of the rule and will not frustrate its overriding purposes,” Gillers said.