New York Considers Adopting Unconstitutional ABA Model Rule 8.4(g)

Remember the ABA’s failed effort at trying to make your law license hinge on your embracing the woke’s ever-changing vision of speech and viewpoint? Despite most states rejecting it, and a district court in Pennsylvania holding it unconstitutional, New York has nonetheless chosen to put it on the table.

What’s wrong with it has been plain since it was first proposed. The breadth of its sweep is stunning, covering “harassment or discrimination on the basis of race, sex, religion, national
origin, ethnicity, disability, age, sexual orientation, gender identity or expression, marital
status or socioeconomic status.” Not only would you be proscribed from expressing any disagreement with any challenged word or thought (hysterical? You can’t say that anymore, kids), but it wouldn’t just be limited to your practice of law, but to its emanations and penumbras.

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.

So naturally, New York wants to hop on this train, and has called for comment. Two alternate proposals have been proffered,

Currently, there are two proposals to revise New York Rule 8.4(g). First, on March 19, 2021, the Administrative Board of the New York Unified Court System requested public comment on a proposal to adopt ABA Model Rule 8.4(g), with certain modifications, to replace New York Rule 8.4(g). Second, on April 16, 2021, the New York State Bar Association’s Committee on Standards of Attorney Conduct (“COSAC”) sought public comment to replace New York Rule 8.4(g) with a rule it claims “differ[s] significantly from ABA Model Rule 8.4(g).”

Josh Blackman, Eugene Volokh and Nadine Strossen have put together a comparison of the proposals. Their conclusion is that neither will pass constitutional muster.

It is our opinion that the Administrative Board proposal would be declared unconstitutional for the same reasons that the Pennsylvania rule was declared unconstitutional: it imposes an unconstitutional form of viewpoint discrimination. The COSAC proposal is an improvement, but still permits the imposition of liability for “derogatory or demeaning verbal conduct.” We do not think this element is valid under Matal v. Tam (2017).

They argue that the only outcome of this rule change would be years of litigation and acrimony, ultimately ending in its rejection. While this is likely true, the fact remains that the courts nonetheless think this is not only a worthwhile idea, but an idea upon which the authority to practice law properly hinges.

We recognize that the New York courts, and the attorneys of New York, are eager to take some form of action to address perceived problems in the profession. But the way to resolve these issues is not through adopting an unconstitutional rule. If adopted, Rule 8.4(g) will lead to years of litigation and acrimony. A better course is to adopt a more modest rule on firm constitutional grounding. For example, the rule could only extend to formal “discrimination,” rather than the nebulous term of “harassment.” The rule could be limited to “the practice of law” rather than ancillary conduct. The rule would not extend to social functions. These suggestions could address some of the perceived need for a change, without raising difficult constitutional questions. But in its present form, both proposals will likely meet the same unconstitutional fate.

While they’re certainly right about both the extension of the rule to “harassment,” a word of little meaning other than the feelings of the person claiming it, and its extension to cocktail parties, the scope of what’s now included under the heading of discrimination reflects a shockingly constricted view of permissible beliefs.

Protected classes

● ABA Model Rule: “on the basis of race, sex, religion, national origin, ethnicity, disability,
age, sexual orientation, gender identity, marital status or socioeconomic status . . . ”

● Administrative Board Proposal: “on the basis of race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, gender identity or expression, marital status or
socioeconomic status . . . ”

● COSAC Proposal: “ . . . on the basis of one or more of the following protected categories:
race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual
orientation, gender identity, gender expression, marital status, status as a member of the
military, or status as a military veteran . . .”

That’s a rather astounding list of taboo beliefs that would be required of lawyers if they want to keep their ticket. Whether you think these are all things you support, even if you haven’t played through these protected classes to their logical extreme (want to hire a vet? You can’t, because that would be discrimination on veteran status), nothing prevents you from being as woke as you wanna be. But what this demands is that every lawyer be as woke as you want them to be, no matter what the ramifications. Can I call the new kids “baby lawyers”? Seems like age discrimination. Can I not hire the person who shows up drunk for an interview? Isn’t alcoholism a disability?

And what about that handsome bloke who hits on you at the bar association cocktail hour, with your enthusiastic consent, only to find out he’s still a birthing person. When your expression of approval turns on his gender expression, did you just violate Rule 8.4(g) and put your license at risk?

As Judge Chad Kenney wrote in Greenberg v. Haggerty, sweet thoughts don’t cut it.

There is no doubt that the government is acting with beneficent intentions. However, in
doing so, the government has created a rule that promotes a government-favored, viewpoint
monologue and creates a pathway for its handpicked arbiters to determine, without any
concrete standards, who and what offends. This leaves the door wide open for them to
determine what is bias and prejudice based on whether the viewpoint expressed is socially
and politically acceptable and within the bounds of permissible cultural parlance. Yet the
government cannot set its standard by legislating diplomatic speech because although it
embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished,
minority viewpoint into the massive currents of suppression and repression. Our limited
constitutional Government was designed to protect the individual’s right to speak freely,
including those individuals expressing words or ideas we abhor. Greenberg v. Haggerty,
491 F. Supp. 3d 12, 32 (E.D. Pa. 2020).

These are dangerous times for deciding what is “socially and politically acceptable and within the bounds of permissible cultural parlance.” Knowing this, New York still believes this is a good idea and no lawyer should believe otherwise.

12 thoughts on “New York Considers Adopting Unconstitutional ABA Model Rule 8.4(g)

  1. Paleo

    The same people who push this kind of stuff are hateful toward certain demographics as well. They’re open about it. Loud and proud.

    As with anything political, the hypocrisy is thick.

    Reply
  2. Jeff Davidson

    There are many things about writing laws that I don’t understand, and including status as a military veteran in these kinds of laws is one of them. Prefer not to hire a military vet? That discriminates against veterans. Prefer to hire a vet? That discriminates on the basis of religion against those of us who are COs.

    Reply
  3. Ray

    You better be careful what you say on this blawg from now on, that’s all I can say. Of course based on past posts you’re probably in a lot of trouble already. You write well, you’d make a good journalist. Investigative reporter? No, that’s out. The Times wouldn’t want to take the chance.

    Reply
  4. B. McLeod

    On the bright side, all the proposed modifications leave “age” in there, so that any NY licensed ABA members will have to resign, due to the dues structure being a proxy for age discrimination

    Reply
    1. SHG Post author

      Curiously, ADEA has a minimum age limit of 40. This does not. What happens if you fire or decline to offer partnership to an associate? Especially since he’s socioeconomically oppressed by definition?

      Reply
      1. RT

        Last time I checked NYS and NYC human rights laws start age discrimination at 18 so both young and old adults are protected here in the Excelsior state. Maybe next there will be a movement to save kids.

        Reply
  5. Rengit

    There were those, some of them lawyers, who thought Justice Scalia should be removed from the Supreme Court for “open racism” because he made a potential case for mismatch theory re: affirmative action at oral argument for the Fisher v. U of Texas case.

    If Model Rule 8.4(g) were adopted, even this more limited proposal that Josh Blackman gives, why would you consider arguing mismatch theory in an affirmative action case, when you could potentially have a bar complaint leveled against you for arguing that schools should use criteria (SATs and the like) that some from certain demographics feel is discriminatory towards them? It’s likely to be understood as de facto arguing that such demographics deserve their underrepresentation. I don’t see how this fully insulates against a potential claim of “discrimination” regardles of jettisoning the harassment or demeaning/derogatory language component, especially in light of the outburst at Georgetown Law a month or two ago.

    Reply

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