The D.C. Bar Rules of Professional Responsibility Review Committee is holding a public comment period until April 5, 2019, on its proposal to amend D.C. Rule 9.1 to include ABA Model Rule 8.4(g). Comments may be sent to ethics@dcbar.org.

ABA Model Rule 8.4(g) is a deeply flawed rule adopted by the American Bar Association in August 2016. Professor Eugene Volokh, a nationally recognized First Amendment expert, explains why Model Rule 8.4(g) is a speech code for lawyers in this helpful two-minute video.

Professor Josh Blackman recently presented an excellent Federalist Society teleforum on ABA Model Rule 8.4(g). The Christian Legal Society has prepared a short backgrounder on D.C.’s proposal to amend D.C. Rule 9.1 to include ABA Model Rule 8.4(g) and submitted a comment letter that details the serious red flags raised by the Rule.

Fortunately, ABA Model Rule 8.4(g) operates only in those states in which the highest court chooses to adopt it; and after two years, only the Vermont Supreme Court has done so. After examining ABA Model Rule 8.4(g) closely, many states have chosen the prudent course: wait to see whether other states adopt ABA Model Rule 8.4(g) and then observe its real-life consequences for attorneys in those states.

As the ABA itself acknowledges, to date, at least nine states have rejected the overly broad rule, including: Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, South Carolina, and Tennessee. For all practical purposes, the rule has also been rejected in Texas and North Dakota. New Hampshire has an open comment period until April 12 when it will also hold a public hearing. Maine, New Mexico, Pennsylvania, and Utah have held comment periods, but their supreme courts have not yet announced decisions. And it seems probable that ABA Model Rule 8.4(g) has met a quiet demise in several additional states.

Some states have backed away from ABA Model Rule 8.4(g) in light of two recent United States Supreme Court decisions in National Institute of Family and Life Advocates (NIFLA) v. Becerra and Matal v. Tam.  In NIFLA, the Supreme Court held that government restrictions on professionals’ speech -- including lawyers’ professional speech -- are generally subject to strict scrutiny because they are content-based speech restrictions and, therefore, presumptively unconstitutional. In Matal, the Supreme Court unanimously struck down a longstanding federal statute because it allowed government officials to penalize “disparaging” speech and, therefore, was viewpoint discriminatory.

The D.C. Bar’s proposed changes to Rule 9.1 would create several new problems for D.C. attorneys because it would define punishable speech and conduct too broadly. Proposed Rule 9.1 would apply to all speech or conduct “with respect to the practice of law” that the lawyer “knows or reasonably should know is harassment or discrimination” as to 12 separate classes. In plain English, Proposed Comment [2] indicates that regulated speech and conduct “includes . . . interacting with . . . others while engaged in the practice of law.”

Activities that may fall within Proposed D.C. Rule 9.1’s broad scope include: 

  • presenting CLE courses;
  • participating in panel discussions that touch on controversial political, religious, and social viewpoints;
  • teaching law school classes as faculty, adjunct faculty, or guest lecturers;
  • writing law review articles, op-eds, blogposts, or tweets;
  • giving media interviews;
  • serving on the board of one’s religious congregation, K-12 school, or college;
  • providing pro bono legal advice to nonprofits;
  • serving at legal aid clinics;
  • lobbying on various legal issues;
  • testifying before a legislative body;
  • writing comment letters to government agencies;
  • sitting on the board of a fraternity or sorority;
  • volunteering for political parties;
  • advocating through social justice organizations; and
  • hosting clients or summer associates at games of the local NFL franchise with a controversial name.

In 2015, proponents of ABA Model Rule 8.4(g) candidly observed that they sought a new black letter rule precisely because they wanted to regulate non-litigating lawyers, such as “[a]cademics, nonprofit lawyers, and some government lawyers,” as well as “[t]ax lawyers, real estate lawyers, intellectual property lawyers, lobbyists, academics, corporate lawyers, and other lawyers who practice law outside the court system.”

The D.C. Bar need not act hastily. Current Rule 9.1 already makes it professional misconduct to engage in employment discrimination, which includes harassment. Also, current Comment [3] to Rule 8.4(d) addresses bias concerns while avoiding the extremes of ABA Model Rule 8.4(g).

Because Proposed Rule 9.1 would drastically chill lawyers’ freedom to express their viewpoints on political, social, religious, and cultural issues, the D.C. Rules Review Committee should either reject or withdraw its proposed rule amendments. At a minimum, the Committee should wait to see whether the widespread prediction that ABA Model Rule 8.4(g) will operate as a speech code for attorneys is borne out -- if and when it is adopted in states other than Vermont.