Whether one agrees with Aaron Sibarium that the law has been lost, there has been little doubt in my mind that the ABA was captured by legal academics and their progressive lawyer allies when it came up with Model Rule 8.4(g). I’ve made that pretty clear over the past few years.
And yet some states, like Pennsylvania, adopted their variation on the theme of Rule 8.4(g) despite the fact that it’s a flagrant effort to create a lawyer speech code to put one’s license to practice law in jeopardy for holding the wrong views, for expressing the wrong ideas.
This isn’t, as my buddy Elie said the other day, about a secret desire for racist lawyers to use the “n-word,” one of the preferred tropes tossed out to blunt the force of argument in favor of free speech, even if it’s possible that could happen. But the Rule, even as revised in Pennsylvania after suit was first brought to hold it unconstitutional, makes clear, as have the various ABA presidents, commissions, committees and groups, that they aspire to a profession dedicated to their causes. Woke causes. Social justice causes. Progressive causes, whether they bear upon the law or not.
The ABA has taken its direction from Shakespeare’s Dick The Butcher, “The first thing we do, let’s kill all the lawyers,” figuratively if not literally. The point being that if lawyers are unable to express contrary arguments and viewpoints, they will magically disappear and the alternative viewpoints, their favored viewpoints will prevail, not because they prevail on merit but because no contrary viewspoints are permitted.
Pennsylvania’s new flavor of 8.4(g) sought to blunt the suit brought against it by Zach Greenberg of FIRE states as follows:
It is professional misconduct for a lawyer to:
* * *
(g) in the practice of law, knowingly engage in conduct constituting harassment or
discrimination based upon race, sex, gender identity or expression, religion,
national origin, ethnicity, disability, age, sexual orientation, marital status, or
socioeconomic status. 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 advice or advocacy consistent with these Rules.
 For the purposes of paragraph (g), conduct in the practice of law includes (1)
interacting with witnesses, coworkers, court personnel, lawyers, or others, while
appearing in proceedings before a tribunal or in connection with the
representation of a client; (2) operating or managing a law firm or law practice; or
(3) participation in judicial boards, conferences, or committees; continuing legal
education seminars; bench bar conferences; and bar association activities where
legal education credits are offered. The term “the practice of law” does not
include speeches, communications, debates, presentations, or publications given
or published outside the contexts described in (1)- (3).
 “Harassment” means conduct that is intended to intimidate, denigrate or show
hostility or aversion toward a person on any of the bases listed in paragraph (g).
“Harassment” includes sexual harassment, which includes but is not limited to
sexual advances, requests for sexual favors, and other conduct of a sexual nature
that is unwelcome.
 “Discrimination” means conduct that a lawyer knows manifests an intention:
to treat a person as inferior based on one or more of the characteristics listed in
paragraph (g); to disregard relevant considerations of individual characteristics or
merit because of one or more of the listed characteristics; or to cause or attempt to
cause interference with the fair administration of justice based on one or more of
the listed characteristics.
There are certainly a great many examples of speech most of us would agree is repugnant and should never happen that fall within the strictures of the rule and its commentary, but that’s not the point of First Amendment speech codes. It’s the speech and viewpoints that we don’t find repugnant, or perhaps we do based on our personal sensibilities, but would similarly be chilled, or result in bar discipline, As Judge Chad Kenney, EDPA held, that is why this rule is unconstitutional.
Defendants insist that the listener’s subjective feelings of offense are irrelevant to Rule 8.4(g) but that seems impossible from both the plain language of the regulation and its administrative process. By using the terms “denigrate,” “hostility,” and “aversion,” as well as questioning when an attorney “manifests an intention: to treat a person as inferior,” the Amendments prohibit offensive language. The listener, regardless of whether that person is the person targeted by the derogatory remarks, subjectively determines if they are offended enough to file a complaint. It is nonsensical for Defendants to assert that an individual’s perception is irrelevant where the Rule relies on complaints filed by the public and whether an individual perceives another’s expression to be welcome or unwelcome is a basic premise of harassment. An individual’s perception is exactly what compels them to file a complaint. Then it is the reviewing employee at ODC who determines whether the language is offensive enough to proceed towards discipline.
The opinion is long at 78 pages and covers a broad swathe of probems it raises, dispelling the excuses argued about why it doesn’t mean what it plainly says (Eugene Volokh has excepted some of the most salient language from the opinion). It’s worthwhile to read the entire opinion to appreciate the scope of the rule in its efforts to preclude lawyers from saying, thinking, arguing or believing any speech that could, in the view of the most attentive activist lawyers on the lookout for wrong-thinking lawyers to grieve, feigning offense on behalf of others or perhaps even believing himself to be offended because his religion commands it,
No doubt many will contend that there are some truly awful lawyers who say terrible things and deserve to be silenced. And I might well agree with this. But neither your vision of speech propriety nor mine controls what this rule prohibits.
Here, the Court agrees with Mr. Greenberg that Rule 8.4(g) ultimately turns on the perceptions of the public to Plaintiff’s speech and then the judgment of the government agents to investigate the incident or administer some form of discipline. Therefore, the Court finds that the Amendments, including Rule 8.4(g) and Comments  and , constitute viewpoint-based discrimination in violation of the First Amendment….
The lawyers have yet to be killed, or silenced, as the ABA’s Butchers would have it. The fact that this rule was approved by the Pennsylvania Supreme Court, however, should give pause that Sibarium’s point, that the law has been lost to the institutional capture of the woke, has merit. It’s tedious to continue to fight for something as basic as free speech, and we all certainly have better things to do with our time. But without the fight, the forces trying to constrain speech for lawyers to its approved viewpoints will prevail. I doubt even Elie would be happy with that outcome.