The Attorney General of Texas, Ken Paxton, issued an opinion calling it unconstitutional. Montana tried it. The legislature stepped in, passing a resolution that it was unconstitutional. The bars in Pennsylvania, Illinois and South Carolina also rejected it as unconstitutional. Not a single state has adopted it.
ABA Model Rule 8.4(g):
It is professional misconduct for a lawyer to:
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (Emphasis added.)
Part of this rule is uncontroversial. It had already existed in most disciplinary codes, and reflected the extant law under Title VII. But then, part of it exists nowhere else, except in the fevered brows of social justice
You might think the commentary, combined with the fact that every state that has considered the rule has rejected it as unconstitutional, would be a red flag. Not in Nevada.The Board of Governors of the State Bar of Nevada has petitioned the Supreme Court to amend its Rules of Professional Conduct to include the new Rule 8.4(g), just another “anti-harassment / anti-discrimination provision.” Nothing to see here. After all, who isn’t against harassment and discrimination, right?
As of August 2016, approximately 25 jurisdictions had already adopted an anti-harassment
/ anti-discrimination provision in their professional conduct rules. Bar counsel
sought National Organization of Bar Counsel input regarding enforcement experiences in these jurisdictions, and learned that enactment of an anti-discrimination provision had neither substantially impacted prosecution caseloads, nor generated significant First Amendment litigation.
This isn’t exactly a lie (because that would violate ethics rules), but a trick. See how they claim 25 jurisdictions already adopted it? Wait, not quite “it” at all, but “an” anti-harassment / anti-discrimination provision. In other words, not this one. Not 25 jurisdictions. Not a single jurisdiction. No one has adopted this rule, and the reason is that it’s flagrantly unconstitutional.
But wait, they dealt with that too.
…nor generated significant First Amendment litigation.
While relatively true of rules that aren’t this rule, this assertion borders on the grossly misleading. While it might be said that this rule hasn’t been the target of significant litigation, that’s because not a single state has adopted it. There’s nothing to litigate when it’s been universally rejected because of its facial unconstitutionality.
Whether one views the Nevada State Bar Board of Governors as being crafty or deceitful, the petition is clearly and deliberately misleading, whether by commission or omission. Wrapping it up in the pretty pink bow of anti-harassment and anti-discrimination imbues any rule with the imprimatur of goodness and virtue. Neglecting to mention that it violates the First Amendment, as so many initiatives of social justice do, is a big deal.
But trying to create the false impression that it’s not even controversial, but widely accepted along with unicorns and rainbows is where the Board of Governors takes its dive into the cesspool. And once one state is splashing about in the cesspool, will others, pushed by their own social justice
warriors bar officials, point at Nevada and cry, “see, see?!?”
Contrary to the ABA’s world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift,
This rule isn’t really about harassment or discrimination, but about “normalizing” the social justice cultural shift by making it part of the rules. This has become the “ABA’s world view” since it was taken over by academics and “lawyers of the left,” but has nothing to do with legal ethics or law. It’s just their religion, and they want to force everyone to pray to their social justice god.
Will Nevada be the state where they sneak this rule’s nose under the tent? Will the Nevada Supreme Court take kindly to being treated like fools, misled, tricked into believing this is not big deal? Will the Nevada State Bar Board of Governors get away with crafting a deliberately misleading petition to their Supreme Court in the hope (and, perhaps, belief) that their judges are too stupid to realize the scam?
Will Nevada be the first, and only, state, to adopt a disciplinary rule for lawyers that is clearly unconstitutional and serves primarily to socially engineer the bar to acquiesce in the social justice cultural shift, upon pain of disbarment?
What do you think, girls*? Oops, I just engaged in a disbarrable offense in Nevada if this new rule is adopted. Nothing wrong with that, right, Linda Klein**?
*Yes. It’s necessary.
**ABA President Linda Klein, who wants her legacy to be all lawyers standing in a circle, holding hands, crying together, while she rides off into the rainbow on her unicorn.