RPC 8.4(g) update – “blue” states keep pushing forward.

Yesterday, June 20, 2022, was the inaugural federal Juneteenth holiday here in the United States. Far too few lawyers and law firms acknowledged it like we do other federal holidays by … you know, closing and not requiring people to work that day. Admittedly, some federal holidays are not fully observed but given the rampant diversity issues in our profession and the rhetoric law firms espouse about diversity and inclusion efforts, the disconnect in taking this opportunity to put tangible action behind the rhetoric is striking.

It appears likely that this will be a continuing problem for certain in the South. Which likely should come as no surprise given that the South was the problem necessitating the existence of Juneteenth in the first place. Not just because of the issue of slavery itself, but because of the unwillingness in the South to spread the information that the Emancipation Proclamation had been made back on September 22, 1862 decreeing freedom for all slaves as of January 1, 1863. Thus, we now have a federal holiday to commemorate the event, on June 19, 1865, when word finally reached Texas that the Emancipation Proclamation had been issued as it was read aloud in Galveston by a general of the Union.

The legal profession, not just in the South, also has a continuing problem regarding racial demographics. In a concrete and clear piece of information demonstrating this, earlier this month the ABA released data from its survey reflecting that over the last decade, the population of lawyers has increased by more than 6.5% but the number of black lawyers was unchanged. Now there are limits to the data, as thirteen different states (including my own) did not participate in providing data to the ABA in 2022 so the ABA had to use the best/most recent data available for those jurisdictions.

The issues that collectively bring about such disparities are obviously multi-faceted, but the sheer difficulty the legal profession has had in acknowledging the need for an ethical prohibition on discrimination and harassment by lawyers is most assuredly in the mix.

Thus, let’s pivot toward some more positive and hopeful news. The list of states that have taken action to adopt a rule targeting harassment and discrimination patterned after ABA Model Rule 8.4(g) has grown by two in the last few weeks as both Illinois and New York have either enacted new rules or appear to be on the precipice of doing so.

The Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

New York has officially adopted, effective on June 10, 2022, a variation on the ABA Model Rule version that shuns comments and puts all the moving parts into the rule itself. The New York version varies from the ABA Model Rule in four substantive respects:

  • Defines “harassment” to require that the conduct be “directed at an individual or specific individuals”
  • Also clarifies that any conduct “that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment” under the Rule
  • Extends to more conduct than just representing clients but does not extend as far as the ABA rule would in that it does not explicitly reach, for example, conduct during bar events or other socializing arising from being a lawyer
  • Specifically carves out “express[ing] views on matters of public concern in the context of teaching, public speeches, [and] continuing legal education programs”

You can read the full text of the rule at the link below:

What will be very interesting to watch is whether, despite the variations made from the ABA Model version, the New York rule is subjected to litigation and attacks of the variety that have been the playbook in other states where adopted, such as Pennsylvania. Given that this is also exactly what has happened recently in Connecticut despite the efforts there to try to water down the rule, I remain skeptical that anyone anywhere can pass any version of RPC 8.4(g) that will not be attacked by the same interest groups, or people egged on by those interest groups, that decry the ABA version as violating First Amendment rights.