In 2016, the ABA adopted Model Rule of Professional Conduct 8.4(g). The rule has proven controversial, with only 7 states having followed suit. That being said, at the time, about half the states already had in place an analogous rule.
Vermont was the first to adopt the amended Model Rule. Here are links to our rule and the Reporter’s Note. Maine and New Hampshire have also adopted versions of the Model Rule. Last month, Pennsylvania became the most recent jurisdiction to do so.
This post is not intended to delve into the controversy surrounding the Model Rule. If you’re interested in learning more, here are representative samples of each side of the debate:
- a short video in which UCLA’s Professor Eugene Volokh argues against the rule;
- the Louisiana Attorney General’s opinion that a court would likely find the rule unconstitutional;
- a post on The Federalist Society blog that reports on the Montana Legislature’s resolution declaring the rule unconstitutional;
- an ABA Journal post that lays out various opinions on the constitutional issues involved;
- a post in which the Dennis Rendleman of the ABA’s Center for Professional Responsibility responds to criticism of the rule;
- a resolution from the Philadelphia Bar Association supporting the Pennsylvania rule; and,
- an article in which NYU Professor Stephen Gillers argues in favor of the rule.
A simple internent search will lead to scores of other resources. This chart summarizes where each jurisdiction is vis-a-vis Rule 8.4(g).
Rather, today’s post is intended to call attention to ABA Formal Opinion 493. Issued yesterday by the ABA’s Standing Committee on Ethics & Professional Responsibility, it provides guidance on the “purpose, scope, and application” of Model Rule 8.4(g). The ABA Journal reported the opinion.
The opinion offers a defense of the rule. Then, it answers five hypotheticals. My sense is that practicing lawyers will be most interested in the hypotheticals. They’re below. The answers? You’ll have to go to the opinion for those!
Hypotheticals verbatim from ABA Formal Opinion 493
(1) A religious organization challenges on First Amendment grounds a local ordinance that requires all schools to provide gender-neutral restroom and locker room facilities. Would a lawyer who accepted representation of the organization violate Rule 8.4(g)?
(2) A lawyer participating as a speaker at a CLE program on affirmative action in higher education expresses the view that rather than using a race-conscious process in admitting African-American students to highly-ranked colleges and universities, those students would be better off attending lower-ranked schools where they would be more likely to excel. Would the lawyer’s remarks violate Rule 8.4(g)?
(3) A lawyer is a member of a religious legal organization, which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity.63 Will the lawyer’s membership in this legal organization constitute a violation of Rule 8.4(g)?
(4) A lawyer serving as an adjunct professor supervising a law student in a law school clinic made repeated comments about the student’s appearance and also made unwelcome, nonconsensual physical contact of a sexual nature with the student. Would this conduct violate Rule 8.4(g)?
(5) A partner and a senior associate in a law firm have been tasked with organizing an orientation program for newly-hired associates to familiarize them with firm policies and procedures. During a planning session, the partner remarked that: “Rule #1 should be never trust a Muslim lawyer. Rule #2 should be never represent a Muslim client. But, of course, we are not allowed to speak the truth around here.” Do the partner’s remarks violate Rule 8.4(g)?
Again, the answers are towards the end of the new ABA Formal Opinion.