ABA Model Rule 8.4(g):

Straddling the Line Between Attorney Misconduct & Free Speech Rights

Johnson County Bar Association

March 2, 2018

Constitutional Issues Surrounding ABA Model Rule 8.4(g)

by

Richard E. Levy

J.B. Smith Distinguished Professor of Constitutional Law, University of Kansas School of Law

  1. Introduction: ABARule 8.4(g) implements the important and laudable goal of preventing discrimination by attorneys in the practice of law. The goal of equal justice under law depends, among other things, on the adherence of the practicing bar to the principles of nondiscrimination.
  1. Constitutional Issues: Notwithstanding its important and laudable purposes, Rule 8.4(g) raises a number of potential constitutional issues in relation to (1) freedom of speech; (2) the void for vagueness doctrine; (3) freedom of religion; and (4)freedom of association.
  1. Bottom Line: Although the Rule would likely survive a facial challenge, it may be unconstitutional as applied in some contexts. The disciplinary administrator should be cautious about extending it to constitutionally protected speech or conduct, and a narrowing construction of the rule might be in order to avoid constitutional problems.
  1. Freedom of Speech: Although Rule 8.4(g), by its terms, refers to conduct, it applies to attorney speech that otherwise constitutes harassment or discrimination on prohibited grounds. See In the Matter of Phillips,408 P.3d 942 (Kan. 2018) (applying Rule 8.4(g) to speech that constituted sexual harassment of prospective client). Depending on the context, such cases may raise freedom of speech issues.
  1. General Rules Regarding Discriminatory Speech: The Supreme Court has held that “hate speech” codes targeting speech that demeans or degrades protected classes violate the First Amendment’s guaranty of free speech. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (concluding that hate speech code constituted impermissible viewpoint discrimination). Nonetheless, the state may proscribe discriminatory speech that rises to the level of harassment, intimidation, or threats. See, e.g., Virginia v. Black, 538 U.S. 343 (2003) (upholding criminal prosecution for cross-burning).
  1. Protection of Attorney Speech:Although attorneys are officers of the court and their speech is subject to professional regulations, it is also constitutionally protected. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Nonetheless, because of the special roles and responsibilities of attorneys, states may have greater leeway in regulating attorney speech than they would when regulating private citizens or the press. See, e.g.,Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (upholding authority to discipline attorney for comments on pending cases under less rigorous review than applied to reporting on pending cases in the press).
  1. Application to Rule 8.4(g):There is no constitutional impediment to the application of Rule 8.4(g) when attorney speech constitutes harassment, intimidation, or threats. Thus, the result in Matter of Phillips is likely consistent with Free Speech doctrine, insofar as telling a prospective client, “don’t wear any under panties” to a meeting almost certainly constitutes harassment that may be proscribed. Whether the rule could be applied to other forms of discriminatory speech is less clear. None of the Supreme Court’s decisions dealing with attorney speech implicate similar issues or address the obligation of attorneys, as officers of the court, to refrain from speech that may be discriminatory in nature. Notwithstanding the usually strict tests that apply to content or viewpoint based restrictions on speech, the rule might withstand scrutiny under the somewhat less strict tests for regulating attorney speech, in view of the state’s interest in protecting equal access to justice.
  1. Void for Vagueness: A law violates due process if it is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551 (2015).
  1. General Rules under the Vagueness Doctrine: Constitutional challenges under the void for vagueness doctrine seldom succeed. The fact that statutory language is somewhat vague or imprecise is not enough to sustain such a challenge. See, e.g., United States v. Lanier, 520 U.S. 259 (1997) (upholding conviction of state judge who sexually assaulted parties and employees under 18 U.S.C. § 242, which prohibits “the deprivation of any rights ... secured ... by the Constitution”). The inclusion of a scienter requirement limiting liability to knowing or intentional violations makes it harder to win a vagueness challenge by ensuring that a violator has fair notice. Nonetheless, the void for vagueness doctrine has special bite when laws apply to speech,because vague rules may “chill” protected speech and because vague rules invite enforcement in a discriminatory manner that targets unpopular ideas. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).
  1. Application to Rule 8.4(g):The prohibitions in Rule 8.4(g) are broad and open-ended and might be applied in ways that violate the void for vagueness doctrine. Insofar as conduct is involved, however, such a challenge would likely fail, especially because the rule prohibits only “conduct that the lawyer knows or reasonably should know is harassment or discrimination . . . .” Nonetheless, if disciplinary administrators attempt to enforce the rule against speech at the outer edges of the rule’s scope or interpret the rule in novel and expansive ways, there might be a vagueness problem. Thus, for example, in Gentile v. State Bar, supra, although the Supreme Court upheld a rule prohibiting attorneys from commenting in ways that present a substantial likelihood of materially prejudicing a pending case, it held that a safe harbor provision was unconstitutionally vague. Under the safe harbor provision, attorneys could state “without elaboration ... the general nature of the ... defense.” Although the attorney endeavored to comply with the safe harbor, the state supreme court nonetheless found that he had violated the rule. On the other hand, application of the rule to speech like that at issue in Matter of Phillips would not raise any serious vagueness problems, because the speech in that case clearly crossed the line into sexual harassment.
  1. Freedom of Religion: It is unlikely that Rule 8.4(g) violates the Free Exercise Clause. The issue here relates primarily to the prohibition of discrimination based on “sexual orientation, gender identity, [and] marital status,” which may implicate the religious beliefs of some attorneys.
  1. Rules Regarding Free Exercise:The Free Exercise Clause provides absolute protection for religious beliefs, but the state may regulate conduct that is motivated by those beliefs. Thus, a belief in human sacrifice would be constitutionally protected, but the state could punish the conduct of human sacrifice as murder.
  1. Neutral Laws: Generally applicable and neutral laws that incidentally burden religious practices are constitutionally valid if they are reasonably related to a legitimate governmental interest. See Employment Division v. Smith, 494 U.S. 872 (1990) (upholding application of drug laws to Native American religious practices). Statutes such as the federal Religious Freedom Restoration Action and similar state laws may modify this rule, but no such law currently applies in Kansas.See City of Boerne v. Flores, 521 U.S. 507 (1997) (holding that Congress lacked power to require neutral state laws to satisfy strict scrutiny).
  1. Laws Targeting Religion: Laws that target particular religions or religious practices must survive strict scrutiny, and are usually invalid. Church of the LukumiBabalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (invalidating law targeting animal sacrifices by the Santeria Church); see alsoTrinity Lutheran Church of Columbia v. Comer, 137 S.Ct. 2012 (June 26, 2017) (holding that state could not deny grants for playground safety equipment to parochial schools).
  1. Application to Rule 8.4(g):Because Rule 8.4(g) is a generally applicable law that only incidentally burdens any religious practice it should be constitutionally valid under Employment Division v. Smith. It might be constitutionally vulnerable, however if it were (1) appliedto pure statements of religious belief or (2) enforced in a manner that targets a particular religion or religious practice.
  1. Freedom of Association: The Supreme Court has recognized a nontextual, penumbral right of freedom of association under the First Amendment. See, e.g.,NAACP v. Patterson, 357 U.S. 449 (1958) (holding that compelled disclosure of an association’s members violates freedom of association when it would subject them to harassment).
  1. Rules Regarding Freedom of Association:Freedom of association protects both the right to associate by becoming a member of a group and the right not to associate.
  1. Membership in Groups: Under the Court’s freedom of association precedents, the state may not punish people for membership in disfavored groups, although it may prohibit membership in groups that engage in illegal advocacy. Compare Scales v. United States, 367 U.S. 203 (1961) (upholding conviction for membership in chapter of communist party advocating overthrow of the government) with Noto v. United States, 367 U.S. 290 (reversing conviction for membership in chapter that did not advocate overthrow of government).
  1. The Right not to Associate: The Court has upheld the application of nondiscrimination laws to associations so as to require them to admit members. See Roberts v. United States Jaycees, 468 U.S. 609 (1984) (upholding law requiring organization to admit women); accordBoard of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (same). In these cases, the Court acknowledged that such requirements interfere with freedom of association, but concluded that the states’ compelling interest in preventing discrimination was sufficient to support the requirement. In other cases, however, the Court has invalidated nondiscrimination laws that applied to less public associations or that interfered with a group’s expressive activity.See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Boy Scouts cannot be compelled to accept gay men as scout leaders); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (holding that freedom of association protected privately organized St. Patrick’s Day parade’s right to exclude by groups that did not share organizer’s views and intended messages).
  1. Application to Rule 8.4(g): Under these principles, the state may not apply rule 8.4(g) in ways that would infringe upon attorneys’ freedom of association.
  1. Membership in Groups: The state could not discipline an attorney for mere membership in a group that may advocate discrimination, although it could if the attorney knew that the group engaged in threats, intimidation, or harassment. See, e.g., Baird v. State Bar, 401 U.S. 1 (1971) (holding that bar administrators could not ask about past membership in the communist party). But see Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971) (concluding that bar administrators could ask about membership in an organization knowing that it advocated the overthrow of the government).
  1. The Right not to Associate:The extent to which freedom of association might protect an attorney’s right not to associate with a class of prospective clients is less clear. Like the association in Roberts v. Jaycees, attorneys are engaged in a business that serves the general public, and so may be subject to laws against discrimination. On the other hand, the relationship between an attorney and a client is an especially close one and client representation is a type of expressive activity, which may mean that there is a right not to serve a class of clients. The issue is further complicated by the role and status of attorneys, which may indicate that the state has an especially compelling purpose in requiring lawyers to represent clients without discrimination.

Constitutional Issues Surrounding ABA Model Rule 8.4(g)Page 1