The American Bar Association is defending a model anti-harassment ethics rule that’s come under criticism as an overbroad regulation of attorneys’ speech.
“Harassment and discrimination damage the public’s confidence in the legal system and its trust in the profession,” the ABA’s ethics committee said in the July 15 opinion. A “particular objective” of the rule is to prevent sexual harassment, it said, although detailing every type of prohibited conduct is difficult.
“Broad standards governing professional conduct are permissible and indeed often necessary,” it said, quoting a 1991 New York appeals court opinion.
The legal industry has come under scrutiny in recent years for ignoring allegations of harassment by judges and law firm leaders.
In 2016, the attorneys group adopted model rule 8.4(g), which prohibits a lawyer from conduct he or she “knows or reasonably should know” is harassment or discrimination against others in conduct related to practicing law that occurs outside the representation of a client or beyond the confines of a courtroom.
Seven states have adopted a version of the ABA rule, most recently Pennsylvania. Several others, including Texas and Illinois, have rejected efforts to adopt it.
The rule has faced organized opposition from some conservatives religious groups and others who say it “presents an undue restriction on their First Amendment rights,” said Cozen O’Connor’s Thomas G. Wilkinson, Jr., a Philadelphia attorney whose practice includes professional responsibility.
In a section dedicated to First Amendment concerns, the ABA opinion said that in order to withstand constitutional scrutiny, any ethics rule that subjects a lawyer to discipline has to be “sufficiently clear” so that lawyers know what they can and can’t do. Such a rule also can’t be overbroad, the opinion said.
The opinion said Rule 8.4(g) is similar to other rules—like 8.4(d), which prohibits conduct “prejudicial to the administration of justice"—regulating lawyer speech that have “withstood constitutional challenges based on vagueness and overbreadth arguments.”
Although it’s broader than other rules because it applies to non-traditional legal settings outside the courtroom like law firm social events, that breadth is necessary because sexual harassment, “in particular,” doesn’t only take place in traditional legal settings, the opinion said.
The opinion cited late U.S. Supreme Court Justice Antonin Scalia’s opinion in 2003’s Virginia v. Hicks, a case challenging a Richmond, Va., trespassing policy allegedly aimed at curtailing crime as overbroad.
Scalia said there’s a “point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law—particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.”
“Rule 8.4(g) promotes a well-established state interest by prohibiting conduct that reflects adversely on the profession and diminishes the public’s confidence in the legal system and its trust in lawyers,” the ABA opinion said.
It’s well-established that states have a legitimate regulatory interest in this area, the opinion said. The opinion cited a 2013 Indiana Supreme Court opinion suspending a lawyer for three years for violating its version of 8.4(g) for distributing flyers calling the lawyers representing his litigation adversaries “bloodsucking shylocks,” and making “various derogatory remarks about Jews generally.”
The opinion provided several hypothetical situations to show what could be considered rule 8.4(g) violations. A lawyer serving as an adjunct professor at a law school clinic who makes repeated comments about a student’s appearance and made nonconsensual, physical contact “of a sexual nature” has violated the rule, it said.
Lawyers who engage in discriminatory and harassing conduct breed distrust in the legal system, the opinion said.
“Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole,” it said.
In an article on Rule 8.4(g), attorneys Andrew F. Halaby and Brianna L. Long said it suffers from “substantive infirmities,” including First Amendment concerns.
Halaby practices with Snell & Wilmer out of its Phoenix, Los Angeles, and San Diego offices. He is chair of the firm’s ethics committee and his practice includes First Amendment matters. Long is an attorney with Nyemaster Goode in Des Moines, Iowa.
Some restrictions on lawyers’ speech have been allowed in ethics rules regulating attorney advertising, decorum in the courtroom, and because they’re “functional necessities in the administration of justice,” the authors said.
But in extending its prohibitions to all conduct “related to the practice of law,” 8.4(g) left “the safe harbor that, at least arguably, marks positively the First Amendment jurisprudence governing limitations on lawyer speech,” Halaby and Long wrote.
And with its inclusion of the “reasonably should know” term, “the rule creates First Amendment free speech quandaries.”
Myles Lynk, a supporter of the rule, said in an email that the phrase “reasonably should know” is defined in Rule 1.0 and “has long been used in the model rules.”
It’s not vague and there’s caselaw on how it should be interpreted, said Lynk, a professor emeritus at Arizona State University’s Sandra Day O’Connor College of Law and Senior Assistant Disciplinary Counsel for Appellate Litigation in the District of Columbia Courts’ Office of Disciplinary Counsel.
The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 493, 7/15/20.