There is a story about a Texan driving his Cadillac, with big bullhorns on the hood, in rural Vermont. He stops to talk with a Vermont farmer, who tells him, "That's my farm; it goes from here all the way over to there." The Texan says, "Well, I have a ranch in Texas, and if I start driving at the east end, I won't even reach the west end by the end of the day." The Vermont farmer thinks for a minute and responds, "Yep, I had a car like that once too."
Like the Texan's ranch, the American Bar Association's new Model Rule of Professional Conduct 8.4(g) does not warrant the hype. Four points establish this proposition. First, Rule 8.4(g) is not unprecedented. It is not a dramatic expansion of the law. It is not even all that new. Second, although Rule 8.4(g) reaches speech, its primary focus is conduct--discrimination and harassment. That predominance affects the First Amendment standards. Third, the hypothetical horribles that critics have paraded are remote and implausible. Were they to arise, there would be a remedy: an as-applied challenge. The imaginative misapplications of Rule 8.4(g) conjured up by critics cannot sustain an argument about chilling First Amendment rights. And fourth, remitting these issues to state employment laws is an ill-advised approach to regulation of the legal profession.
As to the first point, in the overall regulatory scheme, Model Rule 8.4(g) is neither new nor anomalous. Twenty-four states and the District of Columbia address discrimination in their Rules of Professional Conduct. (1) In another twelve states, the proscription appears in the official comments to the rules. (2) Though arguably more inclusive than any single rule, Rule 8.4(g) draws its elements from these precursors. (3) Provisions prohibiting discrimination beyond the context of representing a client, for example, appear in at least ten states. (4) In some jurisdictions, the Rules of Professional Conduct specifically focus on discrimination in employment. (5)
Nor is it novel for Model Rule 8.4(g) to regulate the business side of law practice. The Rules of Professional Conduct already cover many aspects of the legal business, for example, payments by a law firm to a deceased partner's estate, (6) terms of law firm compensation or retirement plans, (7) and the purchase of a law practice. (8) Further, the Rules regulate the names of law firms, (9) as well as supervisory relationships within firms. (10)
It also breaks no new ground for the Rules of Professional Conduct to apply to a lawyer's professional life outside the courtroom or client relationships. For example, the Rules prohibit a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation--at any time, in any con text. (11)
Finally, it is not new for the Rules of Professional Conduct to regulate lawyers' speech. Rule 1.6 forbids disclosure of clients' confidential information. (12) The Rules prohibit lawyers from saying certain things to people who are not their clients. (13) Rule 3.6 imposes duties with regard to trial publicity, (14) and Rule 7.2 governs advertising. (15) These strictures have been on the books for many years.
My second major point is that the explicit and primary focus of Model Rule 8.4(g) is conduct. The provision is, after all, part of the Rules of Professional Conduct. The title of Rule 8.4 is, "Misconduct." (16) Subsection (g) is part of a list that follows the lead-in sentence: "It is professional misconduct to...." (17) To be sure, the Rule specifically refers to verbal conduct, which generally entails speech. Indeed, it would be impossible to regulate the profession without roping in speech. Most of what lawyers do involves speech. But limiting speech is not the primary focus of Model Rule 8.4(g). The primary focus is harmful verbal or physical conduct that manifests bias or prejudice towards others, and harassment through derogatory or demeaning verbal or physical conduct, sexual advances, and requests for sexual favors--in other words, invidiously disparate treatment and abusive or predatory behavior. (18) To the extent that items in this litany do or can involve speech, the involvement is largely incidental to the point of the prohibition. Primarily, speech is evidence of the discrimination. For speech to serve that function is neither unusual nor impermissible, so long as speech is not the sole gravamen of the prohibition. (19)
The comments to Rule 8.4 suggest that the "substantive law of anti-discrimination and anti-harassment statutes and case law" give content to these prohibitions. (20) Those sources cover a far broader array of conduct than public advocacy that gives offense. Under Broadrick v. Oklahoma, (21) the sweep of the legitimate applications of a statute affects the First Amendment standard. (22) The Supreme Court in Broadrick upheld a law barring state employees from engaging in partisan political activities. (23) The Court refused to apply the overbreadth doctrine, which invalidates laws that may seek to cover conduct, but encompass, and thereby chill, a significant measure of protected speech. (24) The Court held that for a statute to violate the First Amendment on that basis, "the overbreadth ... must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." (25) The alleged overbreadth with regard to Rule 8.4(g) is not substantial in relation to the Rule's plainly legitimate sweep.
Turning now to my third point--to the extent that Model Rule 8.4(g) affects speech, it does not raise the First Amendment concerns that critics hypothesize. My conclusion regarding the validity of Rule 8.4(g) under the First Amendment does not rest on an assessment of the social value of particular speech. Although perhaps not a First Amendment purist in the mold of Justice Black, I lean toward an expansive view of First Amendment rights and disagree with those who distinguish between high-value and low-value speech. To rely on such distinctions requires that someone in authority assess the value of the speech and determine whether or not it is protected. In my view, the First Amendment should forbid such determinations. But they are beside the point here, because Model Rule 8.4(g) does not reflect or require value judgments about particular content or speakers or types of speech. It is not a speech code.
To show that, I will flesh out the comparative exercise discussed above with respect to Broadrick, and derive some additional conclusions. If we assume some common-sense proportions to illustrate the point, a pie chart that reflects the coverage of Rule 8.4(g)might look like this:
The majority of the pie chart, shaded blue, is conduct, such as sexual advances, discriminating in promotions or allocation of work, and treating people unfairly. Discrimination by and large is disparate treatment, not...