Rules of Professional Conduct and Rules Governing the Utah State Bar – Comment Period Closed August 1, 2020

Rules of Professional Conduct

Public Service

RPC06.05. Short-term Limited Legal Services. AMEND. Broadens the term “short-term legal services” to include one-time consultations and representations through government- and law school-sponsored programs. Further provides that other lawyers in a firm are not disqualified from representing clients whose interests are adverse to a client who received short-term limited legal services from a lawyer in the firm if (1) the lawyer who provided the services is timely screened from the adverse clients’ matters, and (2) receives no fees from those matters.

Maintaining the Integrity of the Profession

RPC08.04. Misconduct. AMEND. Provides that it is professional misconduct for a lawyer to engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act. “Employer” means any person or entity that employs one or more persons. The amendments also provide that it is professional misconduct for a lawyer to egregiously violate, or engage in a pattern of repeated violations, of the Standards of Professionalism and Civility if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

Rules Governing the Utah State Bar

Standards of Professionalism and Civility

USB14-0301. Standards of Professionalism and Civility. AMEND. Rule 8.4(h) makes the provisions of this rule mandatory for all lawyers. Amendments further provide that lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code section 34A-5-106(1)(a), and federal statutes, as amended from time to time.

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37 thoughts on “Rules of Professional Conduct and Rules Governing the Utah State Bar – Comment Period Closed August 1, 2020
  1. Thonas J Rossa

    In reference to RPC06.05, element (2) says that the lawyer with the possible conflict shall ” (2) receives no fees from those matters :

    This is impossible as fees enter the general account o, for example, partnerships and PCs. and contribute to salaries of all including t he atty who has been fenced out.

    I suggest it be phrased “received no direct fees”

     
  2. J. Michael Coombs

    I believe the proposed amendment to RCP 0.804 may be illegal because Title VII, by its own terms, only applies to employers who receive federal funding. Lawyers do not.

    It is a stretch to take a federal statute that was originally enacted in 1964, over 50 years ago, and suddenly make it applicable to all lawyers simply because it is politically expedient during this day and age to do so. If there wasn’t a reason to do this years ago, there isn’t a reason to do it now.

    Is there really some kind of “evidence” that lawyers are violating Title VII in Utah in regard to employment practices such that this is a serious problem? Where is the study? Where is the evidence to show that this is justified? If there isn’t a problem in this regard, why take steps to address a non-existent problem? Other than to exert control over people, for what reason or purpose?

    I am not an expert on employment law but employment law, on both a state and federal level, should be more than sufficient to force lawyers to address whatever concern the Bar has with how lawyers treat their employees. Lawyers should be treated no differently than any other Utah-licensed individual. This rule seeks to go beyond that.

    The Bar has unfortunately allowed itself to become politicized. It instead needs to leave people alone and quit continually endeavoring to expand its micromanagment and control over those individuals licensed with it. Lawyers are mature individuals and don’t need to be treated like little children. Many of these new proposed rules smack of that in my opinion, this being but one of several.

     
    1. J. Michael Coombs

      Having given it more thought, I would like to add to my comment above concerning proposed RPC 0.804.

      There is something fundamentally unfair, dishonest, and malignantly preposterous in bootstrapping a Rule of Professional Conduct to a massive body of federal law and incorporating it by reference. That is what this proposed rule does.

      Title VII has been around for 50 years, has been amended several times, and, as a consequence, there is a massive body of law involved in and surrounding it. Probably thousands and thousands of cases, not to mention myriad rules and regulations. And recently the US Supreme Court held that Title VII embraces transgenders and homosexuals, all of which will generate substantial additional court cases and otherwise expand the already huge body of law in this area.

      Lawyers, like anyone else, are trying to make a living. It is onerous to expect us to be familiar with Title VII and all its ramifications on a daily basis when we are simply trying to make a living and when we don’t accept either federal or state money to operate our law practices.

      This is not to ignore that there is simply no reason for this rule when lawyers are already bound by the large body of employment discrimination law, which is also enforced by the Equal Employment Opportunity Commission (EEOC), a huge federal agency in its own right.

      Moreover, Utah has substantial employment discrimination law of its own under the Utah Antidiscrimination Act, which is specifically enforced by a division of the Utah Labor Commission.

      Title VII only applies to employers with 15 or more employees and therefore, this proposed rule, which applies to “a lawyer” “that employs one or more persons,” is inconsistent with that which it specifically incorporates by reference. The proposed rule obviously wasn’t thought through very well.

      Since this proposed rule seeks to impose, as a Rule of Professional Conduct, that which is already covered by state and federal employment law, the only conclusion one can draw is that it is designed to provide an additional club or hammer to force lawyers to abide by the political agenda of those now controlling the Utah State Bar or we will now lose our law licenses and right to make a living. It isn’t enough that we are subjected to substantial federal and state civil liability for employment discrimination. No, we need to be subjected to losing our law licenses too. That is exactly what is going on here and it is sad to see the Bar having become so clumsily and brazenly political, particularly when the Utah State Bar is arguably a labor union existing in a Right to Work State.

      There is no legitimate reason to use the Rules of Professional Conduct as a weapon to torture a potential employment discrimination claim by a lawyer’s employee or former employee into a Bar Complaint and then expect lawyers to defend themselves and their right to make a living when any such claim hasn’t even been resolved. How many lawsuits and parallel proceedings should a lawyer have to personally defend at the same time, all for the sake of satisfying those with a particular political agenda?

      Is it fair to give an employee or former employee the ability to file a Bar Complaint so that they can effectively extort more money out of the lawyer in separate civil litigation? That’s what this rule encourages and would allow.

      Does terrifying lawyers with the prospect of losing their ability to make a living, all in order to force them to bend to the will of the political herd, really advance the practice of law or our judicial system? I don’t think so. If it does, then the proponents of this proposed rule should make that case. They have not.

      Finally, the last sentence of the rule is misplaced and belongs elsewhere. The rule is about employment practices, not civility or professionalism in regard to a client. Just another example of the fact that the proposed rule isn’t logical, wasn’t thought through, and has been proposed for an improper purpose.

       
  3. Kevin Worthy

    Section (g) of the proposed amendments to RPC08.04 concerns me. This section states that it is professional misconduct to “engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, ’employer’ shall mean any person or entity that employs one or more persons.” Over the next few weeks, I hope to find some time to address this subject in greater depth, but while I have a moment and am thinking about it, I would like to say that my general sense of unease with this type of language arises out of my view that our society is in many ways growing more twisted and corrupt as the days go by.

    That said, I am not a lawyer who deals regularly in employment discrimination cases, and so it’s not totally clear to me what this rule is prohibiting, but just this week the United States Supreme Court issued an opinion regarding discrimination on the basis of sex (Bostock v Clayton County) that appears to be not only a “brazen abuse” of the court’s authority (as Justice Thomas observed), but also an indication of a deeper moral problem in our country and in our legal system. Specifically, we seem to have a growing tendency to enjoy believing that we are being very righteous and helping the country to make great progress when we boldly condemn “discrimination” against people whose deeply immoral behavior includes things like adultery, fornication and homosexual fornication. All of these things are expressly forbidden in Biblical texts such as Matthew 15:19-20 (“For out of the heart proceed evil thoughts, murders, adulteries, fornications, thefts, false witness, blasphemies. These are the things which defile a man . . . .”) and Romans 1:26-27 (“For this reason God gave them up to vile passions. For even their women exchanged the natural use for what is against nature. Likewise also the men, leaving the natural use of the woman, burned in their lust for one another, men with men committing what is shameful . . . .”). And these Biblical texts have been deeply honored for hundreds of years–not only in the United States but also across great swaths of the planet–as lights of moral judgment par excellence. And many people still honor them as such. Yet, the Utah Supreme Court appears to be on the verge of approving a rule governing lawyers which, in light of Bostock, may end up broadly prohibiting all law firms in the state, regardless of size, from refusing to hire an individual because the firm’s owners believe, based on these time-honored texts of the great lights of history, that his moral judgment is so atrocious that he cannot see that his own sexual misconduct is akin to stealing property, taking lives, committing perjury, and so forth. I find that objectionable.

     
    1. Kevin Worthy

      Dear Supreme Court and Judicial Council,

      Following up on my earlier comments regarding the new proposed Rule of Professional Conduct 8.04(g), I would like to add that God has created heaven and earth, and all things on the face of the earth. He sustains us from day to day, giving us sunlight, oxygen, friends, helpers, teachers, scriptures, prophets, apostles, and ministers of all sorts. He has done this for thousands of years in one form or another, to one degree or another. In the days before Jesus Christ was incarnate of the Holy Spirit and the Virgin Mary, He did this especially to the Israelites and spoke through Moses, Jethro, Joshua, Gideon, Sampson, Saul, David, Isaiah, Ezekiel, Jeremiah, Amos, Daniel, and many others. In those days He wrought miracles for some, such as for the three friends of Daniel who refused to worship idols even though it meant that they would be thrown into a furnace of fire. For others, He allowed the world and their enemies to overtake them, as He did with Isaiah, who was sawn in half. Yet, He never stopped working, and He never stopped calling disciples to lives of radical obedience.

      Likewise, after Jesus Christ was born of the Virgin, God called disciples, whom he also called apostles, and commissioned them to go into every land of all the world, as much as was in their power, and to declare the good news of repentance and salvation and peace and eternal life. These apostles went far and wide from Jerusalem, where they started, and some of them left extensive writings for the benefit of posterity. Among these are the writings of the New Testament, which the Church of God compiled around the time of Athanasius the Great, and which it has honored devoutly since that time. Indeed, through the violence of the Muslims and, more recently of the Soviet and other Communists, the Church has suffered great and terrible things. Millions of people have died for the faith of Christ as it was delivered to the apostles. They have not compromised when their enemies have insisted on things that amounted to the denial of Christ, thinking that it was preferable to suffer horrible tortures and death than to deny Christ in order to secure the comforts and blessings of this life.

      In our age in this country, we do not see Christians being horribly tortured and killed because of their Christianity (thank God), but we do see them being attacked, as it were, in more subtle ways. For instance, for many hundreds of years the Church has taught that abortion of unborn children is tantamount to exposing them after birth, which is a kind of murder. And yet we see so many in our society today rejecting this clear teaching of the Church in the name of progress and trying to persuade others that murder is not murder.

      Likewise, the Church for hundreds of years has taught that fornication, including homosexual fornication, is a grave sin, not in need of approval and support, but in need of the good news of repentance, which is that these terrible sins can be forgiven through the mercy and kindness of God.

      Now, however, the Utah Bar, in what appears to be a gross error of moral judgment, seems to be expressing an interest in forcing lawyers, and apparently on pain of the loss of their law licenses, not to call this horrible sin what it is, not to recognize that the failure to call it such is a gross error of moral judgment, and not to make everyday decisions based on their perceptions of the deeply flawed moral judgment of potential, or current, employees. This, at least, is what I understand to be the point of the new proposed Rule of Professional Conduct 8.04(g).

      As a result, I object to the new proposed Rule 8.04(g) very strongly. May God forgive me if I have misunderstood the intent of this new proposed rule.

      Sincerely,
      Kevin Worthy

       
  4. J. Bogart

    The Proposed Amendment of Rule 8.4:

    Adds paragraphs (g) and (h)

    (g):
    1. It is unclear how conduct could be unlawful under an Act whose jurisdiction does not extend to the person in question. A firm of two with two employees cannot engage in conduct that is a discriminatory employment practice under the Civil Rights Act of 1964. They are not within the jurisdiction of the Act. Applying it so is not applying the statute.
    2. How does the to-be-prohibited conduct affect the administration of justice? No evidence to that effect was considered by the Committee in drafting the proposed rule change. Is there connection between the prohibited conduct and the ability of the person to deliver legal services competently?
    3. Is a lawyer employed by a company which is guilty of Title VII violations unprofessional for that reason? If the lawyer is a principal of the firm or a member of senior management? How does OPC propose to proceed against entities which violate the proposed rule? If the offendor is an employee, is that person subject to the Rule? They are not an employer under any account. My guess is that the idea is that the proposal is: a lawyer engage in unprofessional conduct if the engaged in conduct is such that, had the lawyer been an employer subject to the Civil right Act, etc., would have been an illegal employment practice.
    4. Why in this case only is there is no connection between the prohibited conduct and administration of justice or delivery of legal services? Professional conduct would normally be conduct about performance of the profession or of professional services. There does not appear such a connection here. I saw none discussed in the Committee minutes. Or, to put it another way, see Comment [2] to Rule 8.4. Why would an egregious betrayal of one’s spouse not matter to professional conduct although immoral, but a violation of the Civil Rights Act re employment does? It would be helpful if the Committee would explain the thinking here.
    5. More generally, I think adding to the regulation of legal practice is an error. The difficulties of successfully delivering legal services through private practice are substantial and increasing. Rules should be directed at improving the delivery of services and enabling lawyers to effectively and competently deliver services. The recent revisions to the advertising rules are the sort of thing needed, not increasing the complexity of the rules.
    6. How do religious exemptions work? They are not part of Title VII; is the whole body of employment law invoked here? If so, is the Bar and Court committing to the view that the same conduct performed by a lawyer member of a religious entity is not misconduct but is when performed by someone else? Are you importing the ministerial function test or what?

    Comments to the Rule:
    [3] The comment materially alters the meaning of (g). I thought the Court was clear that the Rules are not altered by Comments and the Comments are not rules or law. If the Comment is what is meant, it should be in the Rule.
    The retention of the sentence “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule” is difficult to understand. An illegal employment practice, known only to the members of the firm and having no effect on the administration of justice is unprofessional conduct but an attempt to pervert justice through racist acts in court at trial is not? Keep in mind that a judge would have to find that there was no other explanation for what the lawyer did. Is there some other area where a court finding of violation of rules of professional conduct is not enough? Would two findings discriminatory challenges be enough?
    What does ‘diversity and inclusion’ mean in this context? Underrepresented relative to what?
    [5] I am relieved that the US and Utah Constitutions have some role. That such a comment is included is telling.
    [6] What is the import of the first sentence? Does it imply that limiting one’s practice to the very wealthy is a possible violation? Or, in domestic cases, limiting representation to women or men, would one of those be a violation?

    This revision has been put out for comment several times. The response from the members of the bar has been unenthusiastic:

    June 13, 2017: 60 responses: 57 opposed, 3 mixed, none in support.
    March 21, 2019: 15 responses: 11 opposed, 2 supported, 1 mixed.

    USB 14-301

    3. Law-related activities appears to have no real limit. I do not think that conduct at a private event is appropriate for regulation by the Bar. It does not affect professional services. OPC will now be a forum for rectifying hostile exchanges between drunks at a private firm event? No nasty commentary on politics? Or is it enough to assume here, unlike for 8.4, that the US and Utah Constitutions apply? Or is the work being done by “avoid”? Try not to, but if you can’t help it….
    Comment to 3: The first sentence is puzzling. A lawyer should refrain from comparative statements? Should not say Lawyer A is better than Lawyer B? That certainly expresses superiority. Or is it that Lawyer A cannot say that Lawyer A is better than B?
    “Law-related activities” appears to mean anything a lawyer does. It casts too wide a net and gives little notice of what might be subject to control. Does the “firm party” have to be a formal event to fall within “law related activities”? Meeting up at a bar with other lawyers count as a law related activity? How would one know?

    I do not think this version solves the many serious religious freedom and free speech issues present in the earlier versions of 8.4(g). It still seems to be a rule driven by political concerns, with little real connection to professional services or delivery of professional services. It still involves a sort of jurisdictional overreach – an attempt to dictate to lawyers what they should think. The history of the proposal at the ABA and, more importantly, in Utah suggests the same.

     
  5. David Nammo

    Christian Legal Society (“CLS”) is a national association of Christian attorneys, law students, and law professors, founded in 1961, to help lawyers and law students integrate their faith with their practice of law. CLS has members in Utah. CLS’s current president, as well as its immediate past president, are women who have practiced law for a number of years. Women constitute a significant percentage of CLS’s attorney and law student members and leaders, and CLS opposes harassment and discrimination against women in the legal profession.

    For a number of constitutional and policy reasons, CLS urges the Utah Supreme Court not to adopt Proposed Rules 8.4(g) and 8.4(h) or the proposed changes to USB Rule 14-301.

    CLS commends two recent written analyses of ABA Model Rule 8.4(g) and rules derived from it. First, Professor Michael McGinniss, Dean of the University of North Dakota School of Law, recently produced a thoughtful, careful analysis of ABA Model Rule 8.4(g), entitled Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173 (2019), https://law.und.edu/_files/docs/features/mcginniss-expressingconsciencewithcandor-harvardjlpp-2019.pdf. Dean McGinniss “examine[d] multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, [and] socially conservative lawyers’ justified distrust of new speech restrictions.” Id. at 173.

    Second, last summer, the Alaska Attorney General wrote a seventeen-page letter to the Board of Governors of the Alaska Bar Association, opposing the modified version of ABA Model Rule 8.4(g) that the Board then had under consideration. Letter from Attorney General Kevin Clarkson to Board of Governors of Alaska Bar Association (Aug. 9, 2019), http://www.law.state.ak.us/pdf/press/190809-Letter.pdf. The Alaska Attorney General warned that “[t]he idea that the Proposed Rule could be used to suppress an attorney’s constitutionally protected speech on behalf of a client is far from speculative.” Id. at 10. The attorney general drew on his own personal experience when in private practice of being “unconstitutionally targeted with a complaint under municipal non-discrimination law for my representation of a faith-based women’s shelter before the Anchorage Equal Rights Commission.” Id. He expressed “little doubt that if the Proposed Rule is enacted, it will be weaponized in similar fashion to intimidate or punish attorneys for vigorously representing their clients.” Id. at 10-11.

    Sadly, we live at a time when many people, including lawyers, are willing to suppress the free speech of those with whom they disagree. See, e.g., Aaron Haviland, “I Thought I Could Be a Christian and Constitutionalist at Yale Law School. I Was Wrong,” The Federalist (Mar. 4, 2019), https://thefederalist.com/2019/03/04/thought-christian-constitutionalist-yale-law-school-wrong/ (student president of Yale Law School chapter of the Federalist Society describing significant harassment by other Yale Law students and student organizations because they did not like the ideas that they ascribed (accurately or inaccurately) to Federalist Society members and guest speakers).

    Many proponents of ABA Model Rule 8.4(g) and its derivative rules, such as the Utah 2020 Proposed Rules, sincerely believe that the Rule will only be used to punish lawyers who truly are bad actors. But recently we have witnessed too many times when people are punished, and their livelihoods placed at risk, for holding traditional religious views that may be currently disfavored by the popular culture. Indeed, simply supporting freedom of speech has become controversial, in and of itself, as we have seen in recent weeks when well-known liberal signatories to a letter were publicly pressured to recant their support for freedom of speech and tolerance of others’ differing beliefs. “J.K. Rowling Joins 150 Public Figures Warning Over Free Speech,” BBC (July 8, 2020), https://www.bbc.com/news/world-us-canada-53330105.

    We live in a time when the CEO of Mozilla lost his position because of his religious beliefs regarding marriage. “Did Mozilla CEO Brendan Eich Deserve to Be Removed from His Position?” Forbes (Apr. 11, 2014), https://www.forbes.com/sites/quora/2014/04/11/did-mozilla-ceo-brendan-eich-deserve-to-be-removed-from-his-position-due-to-his-support-for-proposition-8/#483d85c02158. The African-American Fire Chief of Atlanta, who was appointed the U.S. Fire Administrator by President Obama in 2009, was fired by the City of Atlanta because he wrote a book that discussed his religious beliefs regarding marriage and sexual conduct. Testimony Before the House Committee on Oversight and Government Reform on Religious Freedom & The First Amendment Defense Act, 114th Cong. (July 12, 2016) (statement of Kelvin J. Cochran).

    Lawyers, whether classical liberal, conservative, libertarian, or religious, understandably are unwilling to support a black letter rule that could easily be similarly misused to deprive them of their license to practice law. As Professor Volokh, a nationally recognized First Amendment expert, has explained in a short Federalist Society video, https://www.youtube.com/watch?v=AfpdWmlOXbA, ABA Model Rule 8.4(g) is a speech code for lawyers.

    The 2020 Proposed Rules are essentially the same as the 2019 Proposed Rules, and should not be adopted for the same reasons as the 2019 Proposed Rules were not adopted. CLS’ letter urging that the 2019 Proposed Rules not be adopted can be found here, and its letter regarding the 2017 Proposed Rules can be found here.

    I. This Court Should Not Subject Utah Attorneys to a Complicated and Confusing Set of Rules that Have
    Not Been Tested in Another State.

    A. The 2020 Proposed Rules are not necessary because Utah already has Rule of
    Professional Conduct 8.4(d) and its Comment [3].

    Utah Rule of Professional Conduct 8.4(d) currently provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Utah has adopted Comment [3] to that rule, which provides:

    A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

    Utah R. Prof’l Conduct 8.4 cmt.3. Comment [3] is a verbatim adoption of the Comment [3] that accompanied ABA Model Rule 8.4 from 1998 to 2016.

    Because the 2020 Proposed Rules are experimental and risky, they should not be imposed on Utah attorneys. This is particularly true when there is readily available the prudent option of waiting to see what other jurisdictions decide to do and then observing the real-world consequences for attorneys in those states. There is no need for haste because current Rule 8.4(d) already prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and current Comment [3] to Rule 8.4 already deems bias and prejudice in the course of representing a client to be professional misconduct if the conduct is prejudicial to the administration of justice.

    B. Unraveling the 2020 Proposed Rules is tricky because of the interplay between the Proposed
    Changes to the Standards of Professionalism and Civility and new Proposed Rules 8.4(g) and (h).

    No state has adopted a rule like the 2020 Proposed Rules, which are a complex and confusing combination of elements of ABA Model Rule 8.4(g) with some disjointed elements of other states’ rules. The result is a set of rules, which if adopted, greatly expands the grounds upon which Utah lawyers may be subject to discipline.

    The Court was wise not to adopt the 2017 and 2019 Proposed Rules and should not adopt the 2020 Proposed Rules. Indeed, the 2020 Proposed Rules are quite similar to the 2019 Proposed Rules. Where there have been changes, they are largely for the worse.

    1. The 2020 Proposed Rules would make major changes to the Standards of
    Professionalism and Civility.

    Creating great confusion, the 2020 Proposed Rules amend the Standards of Professionalism and Civility so that violations of the Standards will now subject Utah lawyers to discipline for professional misconduct. Indeed, if the 2020 Proposed Rules were adopted, Proposed Standard 3 would become the primary black letter rule instead of Proposed Rule 8.4(g) or current Rule 8.4(d) with its current Comment [3].

    The interaction of the Proposed Rules 8.4(g) and 8.4(h) with the Proposed Standards – which would all be transformed into black letter rules themselves – is quite complicated. The main anti-discrimination black letter rule actually would not be found in Rule 8.4(g) or (h) but in Proposed Standard 3, which would now itself be a black letter rule like the rest of the Standards. A major change to the Standards is found in the final paragraph of the preamble, which would read as follows: “[T]he term ‘standard’ has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers.” Standards of Professionalism and Civility, Preamble (USB14-301 Amend. Draft May 15, 2020).

    Proposed Standard 3 would provide, in part, as follows:

    Standard 3 (in part): Lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code section 34A-5-106(1)(a), and federal statutes, as amended from time to time.

    Comment (in part): Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLEs; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.

    There are several problems to note with the Proposed Standard 3:

    • “Law-related activities” is broadly defined to include CLEs and firm parties;
    • “Discriminatory conduct” is broadly defined as including (but not limited to) “all discrimination against
    protected classes” enumerated in Utah and federal law. But note that this definition is not limited to what
    is actually unlawful under Utah and federal statutes. Standard 3 uses Utah and federal statutes merely to
    provide the list of “protected classes.” Standard 3 does not limit “discriminatory conduct” to unlawful
    conduct. A lawyer’s conduct could be deemed “discriminatory” and, therefore, subject to discipline even
    though the conduct was not unlawful under Utah or federal law;
    • The list will enlarge as state and federal statutes are amended or re-interpreted to include additional
    protected classes; and
    • As explained below, terms in Standard 3, including “demeaning” and “humiliating,” run afoul of the First
    Amendment’s prohibition on viewpoint discrimination in laws that restrict speech.

    2. The Standards of Professionalism and Civility should not be transformed into black letter rules.

    The 2020 Proposed Rules would convert the Standards of Professionalism and Civility – which were adopted to “encourage lawyers to meet their obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism” – from being aspirational guidance into black letter rules for which attorneys could be sanctioned for violating them.

    Specifically, the 2020 Proposed Rules would amend the Standards’ preamble to expressly state that “the term ‘standard’ has historically pointed to the aspirational nature of this rule. But Rule 8.4(g) now make the provisions of this rule mandatory for all Utah lawyers.” Proposed Rule 8.4(h) would read: “It is professional misconduct for a lawyer to . . . (h) egregiously violate, or engage in a pattern of repeated violations of Rule 14-301 [Standards of Professionalism and Civility] if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.”

    Among other changes, the 2020 Proposed Rules would amend the Standards to require lawyers to “avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” The definitions of both “discriminatory conduct” and “law-related activities” are expansive. “Discriminatory conduct” would “include[]” but not be limited to “all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code section 34A-5-106(1)(a), and federal statutes, as amended from time to time.” Id. “Law-related activities” would include “CLE’s; events sponsored by the Bar, Bar sections, or Bar Associations; and firm parties.”

    But the bigger problem with the 2020 Proposal Rules’ conversion of the Standards of Professionalism and Civility into black letter rules is that “aspirational” language typically does not have the specificity and clarity that the Constitution requires of rules that carry such heavy penalties for violations. Words like “demeaning” and “disparaging” are appropriate in aspirational guidance but are unconstitutional viewpoint discrimination when used to sanction lawyers’ speech. Cf., National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Matal v. Tam, 137 S. Ct. 1744 (2017).

    For these reasons, CLS urges the Court not to transform the Standards of Professionalism and Civility into black letter rules.

    3. The 2020 Proposed Rules would make major changes to Rule 8.4 by adding two new
    black letter rules.

    The 2020 Proposed Rules would add two new black letter rules to Rule 8.4 that make it professional misconduct to:

    Rule 8.4(g): engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or

    Rule 8.4(h): egregiously violate, or engage in a pattern of repeated violations of, Rule 14-301 if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

    At first glance, Proposed Rule 8.4(g) seems to be tracking some states’ rules, such as Illinois’ rule, which require that a lawyer’s conduct be found to be “unlawful” by an adjudicatory body other than the bar disciplinary counsel before a charge of professional misconduct can be brought against the lawyer. Indeed, Illinois’s rule requires that the appeals be final before a charge can be brought by bar counsel. But on closer scrutiny, Proposed Rule 8.4(g) lacks key safeguards found in the Illinois rule.

    For instance, Proposed Rule 8.4(g) would make it professional misconduct for a lawyer to “engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act.” Because of the comma after “unlawful,” Proposed Rule 8.4(g) punishes more than an “unlawful” employment practice, but also punishes “discriminatory, or retaliatory” employment practices that are not necessarily “unlawful.” The use of the disjunctive “or” reinforces this reading. If the revised proposal is intended to be limited only to “unlawful” conduct, then the modifiers “discriminatory, or retaliatory” should be deleted. Otherwise there needs to be an explanation as to which “discriminatory, or retaliatory employment practice[s]” are not “unlawful” but nonetheless will be considered professional misconduct. CLS made this same comment regarding the same language in the 2019 Proposed Comments, but the problem was not corrected, adding to the concern that the language is not intended to be limited to “unlawful” conduct.

    Additionally, the Illinois rule requires that a judicial or administrative tribunal, other than a state bar tribunal, find that an attorney committed unlawful discrimination before the state bar may entertain a disciplinary complaint against the attorney. And any appeal must have been finalized before disciplinary action can be pursued. This requirement ensures that the attorney has been found to have engaged in unlawful conduct in a tribunal that provides the attorney with greater due process rights, access to discovery, and evidentiary protections than typically are available in the bar disciplinary process. The 2020 Proposed Rules should have included the requirement that any conduct found to be professional misconduct have been first adjudicated to be “unlawful” by a tribunal other than bar disciplinary process. CLS made this same comment regarding same language in the 2019 Proposed Comments, but no change was made.

    Finally, the term “employer” would be broadened to subject solo practitioners and firms with fewer than 15 employees to complaints of professional misconduct for their employment decisions. Solo practitioners and firms with fewer than 15 employees are not subject to Title VII claims of employment discrimination, but they will be subject to Proposed Rule 8.4(g).

    4. The 2020 Proposed Rules would add several problematic Comments to accompany
    Proposed Rules 8.4(g) and 8.4(h) that raise questions about a lawyer’s ability to decline
    representation of a client and other problems.

    The 2020 Proposed Rules would add several comments that combine elements of ABA Model Rule 8.4(g) with state and federal law, as well as other states’ rules, in a complicated and confusing way.

    a. Proposed Comment [4], first sentence.

    The first sentence of Proposed Comment [4] provides: “The substantive law of antidiscrimination and anti-harassment statutes and case law governs the application of paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense.”

    There are two things to note about this first sentence. First, as already noted, solo practitioners and small firms will be subject to discipline as employers.

    Second, Proposed Comment 4 provides that substantive antidiscrimination and anti-harassment law governs application of Proposed Rule 8.4(g), but there is no mention of either Proposed Rule 8.4(h) or Proposed Standard 3, both of which, if adopted, would be black letter rules prohibiting “discriminatory conduct in law-related activities.” Unlike Proposed Rule 8.4(g), Proposed Rule 8.4(h) and Standard 3 evidently are not to be “govern[ed]” by “[t]he substantive law of antidiscrimination and anti-harassment statutes.” This makes Proposed Rule 8.4(h) and Proposed Standard 3 broader than Proposed Rule 8.4(g).

    b. Proposed Comment [4], second sentence (first half).

    The first half of the second sentence of Proposed Comment [4] provides: “Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation, . . .”

    To the contrary, the 2020 Proposed Rules could limit Utah lawyers’ ability to accept, decline, or withdraw from a representation. The proponents of ABA Model Rule 8.4(g) generally claim that it will not affect a lawyer’s ability to refuse to represent a client and point to the Rule’s language that it “does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”

    Here’s the problem. Proposed Comment [4] mentions only Proposed Rule 8.4(g) and not Proposed Rule 8.4(h), which is significant because it is Proposed Rule 8.4(h) that extends to Proposed Standard 3. And it is Proposed Standard 3 that actually does more of the work than does Proposed Rule 8.4(g). According to the Proposed Rules’ plain text, the prohibition on “discriminatory conduct in law-related activities” found in Proposed Standard 3 would apply to a lawyer’s ability to accept, decline, or withdraw from a representation.

    This would be consistent with the Vermont Supreme Court’s understanding of ABA Model Rule 8.4(g). When Vermont became the first state to adopt the model rule, its supreme court explained in its accompanying Comment [4] that “[t]he optional grounds for withdrawal set out in Rule 1.16(b) must also be understood in light of Rule 8.4(g). They cannot be based on discriminatory or harassing intent without violating that rule.” The Vermont Supreme Court further explained that, under the mandatory withdrawal provision of Rule 1.16(a), “a lawyer should withdraw if she or he concludes that she or he cannot avoid violating Rule 8.4(g).”

    The New York State Bar Association Committee on Professional Ethics issued an opinion in January 2017 that concluded that “[a] lawyer is under no obligation to accept every person who may wish to become a client unless the refusal to accept a person amounts to unlawful discrimination.” N.Y. Eth. Op. 1111, N.Y. St. Bar Assn. Comm. Prof. Eth., 2017 WL 527371 (Jan. 7, 2017) (emphasis supplied.). In the facts before the Committee, a potential client requested a lawyer to represent him in a claim against a religious institution. Because the lawyer was of the same religion as the institution, the lawyer was unwilling to represent the person in a suit against the religious institution. Calling the definition of “unlawful discrimination” for purposes of New York’s Rule 8.4(g) a question of law beyond its jurisdiction, the Committee declined to “opine on whether a lawyer’s refusal to represent a prospective client in a suit against the lawyer’s own religious institution constitutes ‘unlawful discrimination’” for purposes of New York’s Rule 8.4(g).” (Emphasis supplied.)

    The Massachusetts Commission Against Discrimination found that a law firm that specialized in representing women in divorce cases had violated state nondiscrimination law when it refused to represent a man. Stropnicky v. Nathanson, 19 M.D.L.R. 39 (M.C.A.D. 1997), affirmed, Nathanson v. MCAD, No. 199901657, 2003 WL 22480688, 16 Mass. L. Rptr. 761 (Mass. Super. Ct. 2003). As these examples demonstrate, reasonable doubt exists that Rule 1.16 provides adequate protection for attorneys’ ability to accept, decline, or withdraw from a representation.

    Not surprisingly, law professors who teach professional responsibility agree that this is a genuine concern with ABA Model Rule 8.4(g), despite its inclusion of reassuring language. As the late Professor Rotunda and Professor Dzienkowski explain, Rule 1.16 actually “deals with when a lawyer must or may reject a client or withdraw from representation.” Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, ed. April 2017, in “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” (emphasis in original). Rule 1.16 does not address accepting clients. Moreover, as Professor Rotunda and Professor Dzienkowski observed, Comment [5] to ABA Model Rule 8.4(g) would seem to limit any right to decline representation, if permitted at all, to “limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations.”

    Dean McGinniss agrees that “[d]espite its ostensible nod of non-limitation, Model Rule 8.4(g) offers lawyers no actual protection against charges of ‘discrimination’ based on their discretionary decision to decline representation of clients, including ones whose objectives are fundamentally disagreeable to the lawyer.” McGinniss, supra, at 207-209. Because Model Rule 1.16 “addresses only when lawyers must decline representation, or when they may or must withdraw from representation” but not when they “are permitted to decline client representation,” Model Rule 8.4(g) seems to only allow what was already required, not declinations that are discretionary. Dean McGinniss warns that “if state bar authorities consider a lawyer’s declining representation . . . as ‘manifest[ing] bias or prejudice,’ they may choose to prosecute the lawyer for violating their codified Model Rule 8.4(g).” Id. at 207-208 & n.146.

    c. Proposed Comment [4], second sentence (second half)

    The second half of the second sentence of Proposed Comment [4] provides: . . . “nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules.”

    Again, this provision does not apply to Proposed Rule 8.4(h) or Proposed Standard 3, which prohibit “discriminatory conduct in law-related activities.” This language is drawn from ABA Model Rule 8.4(g) and, therefore, suffers from the same defect: language that appears to protect speech does not. The first problem is self-evident: Who gets to determine whether advocacy is “legitimate” or “illegitimate” under proposed ABA Model Rule 8.4(g)? The second problem is that the qualifying phrase “consistent with these rules” makes it utterly circular. Like the proverbial dog chasing its tail, the Proposed Comment protects “legitimate advice or advocacy” only if it is “consistent with” the Rule itself.

    As Andrew Halaby and Brianna Long note in their catalogue of the Rule’s problems, “the word ‘legitimate’ cries for definition.” Indeed, “one difficulty with the ‘legitimate’ qualifier – lawyers need to make the arguments in order to change the law, yet the new model rule obstructs novel legal arguments,” particularly when “the subject matter is socially, culturally, and politically sensitive.” They further assert that “[i]n fact, the proposed rule would effectively require enforcement authorities to be guided by their ‘personal predilections’ because whether a statement is ‘harmful’ or ‘derogatory or demeaning’ depends on the subjective reaction of the listener. Especially in today’s climate, those subjective reactions can vary widely.” Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 238 (2017).

    Dean McGinniss notes that this language especially concerns “lawyers with traditional religious or moral convictions, often disparaged as so-called bigotry in contemporary political and popular culture and which may be deemed illegitimate by state bar authorities.” McGinniss, supra, at 210.

    Likewise, the Tennessee Attorney General warned that “the [Board of Professional Responsibility] would presumably get to draw the line between legitimate and illegitimate advocacy, creating a further risk that advocacy of controversial or politically incorrect positions would be deemed harassment or discrimination that constitutes professional misconduct.” Tenn. Att’y Gen. Letter, Letter from Attorney General Slatery to Supreme Court of Tennessee (Mar. 16, 2018), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/foi/rule84g /comments-3-16-2018.pdf.

    d. Proposed Comment [4], third sentence

    The third sentence of Proposed Comment [4] provides: “Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g).”

    As already noted, Proposed Rule 8.4(g) gives the semblance of applying only to unlawful discriminatory conduct, seeming to follow Illinois’ example in its Illinois Rule of Professional Conduct 8.4(j). But the Illinois rule requires that a tribunal other than the bar disciplinary counsel have found the conduct to be unlawful discrimination, and appeal exhausted, before a charge will be brought. Proposed Comment 4 demonstrates that Proposed Rule 8.4(g) is not actually employing the Illinois rule as a model. Proposed Comment 4 makes clear that the disciplinary counsel process will be the tribunal of first resort for employment discrimination claims under Proposed Rule 8.4(g), as well as claims of “discriminatory conduct in law-related activities” brought under Proposed Rule 8.4(h) and Proposed Standard 3. This places a tremendous new burden on the bar’s disciplinary staff, as well as depriving accused lawyers of the greater due process, discovery opportunities, and evidentiary protections offered to the accused in other tribunals.

    e. Proposed Comment [4], fourth and fifth sentences.

    The fourth and fifth sentences of Proposed Comment [4] provide: “Lawyers may discuss the benefits and challenges of diversity and inclusion without violating paragraph (g). Unless otherwise prohibited by law, implementing or declining to implement initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).”

    Again, by specifying Proposed Rule 8.4(g) but not Proposed Rule 8.4(h) or Proposed Standard 3, the plain text suggest that lawyers may not discuss the benefits and challenges of diversity and inclusion, and that lawyers may not implement or decline to implement diversity and inclusion initiatives, without violating Proposed Rule 8.4(h) and Proposed Standard 3. If nothing else, Proposed Comment [4] supports the belief that the 2020 Proposed Rules, if adopted, will mean that there are permissible topics of discussion — and impermissible topics for discussion.

    II. Under the Analyses of Two Recent United States Supreme Court Decisions, ABA Model Rule 8.4(g) and
    Rules Derived from It Are Likely to be Found Unconstitutional.

    Since the ABA adopted Model Rule 8.4(g), the Supreme Court has issued two key free speech decisions that demonstrate its unconstitutionality, National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), and Matal v. Tam, 137 S. Ct. 1744 (2017). The ABA Section of Litigation published an article in which several section members concurred that the Becerra decision raises serious concerns about the rule’s overall constitutionality:

    Model Rule 8.4(g) “is intended to combat discrimination and
    harassment and to ensure equal treatment under the law,” notes
    Cassandra Burke Robertson, Cleveland, OH, chair of the Appellate
    Litigation Subcommittee of the Section’s Civil Rights Litigation
    Committee. While it serves important goals, “the biggest question
    about Rule 8.4(g) has been whether it unconstitutionally infringes
    on lawyers’ speech rights—and after the Court’s decision in
    Becerra, it increasingly looks like the answer is yes,” Robertson
    concludes.

    C. Thea Pitzen, First Amendment Ruling May Affect Model Rules of Professional Conduct: Is Model Rule 8.4(g) Constitutional?, ABA Section of Litigation Top Story (Apr. 3, 2019) (emphasis supplied), https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2019/first-amendment-ruling-may-affect-model-rules-prof-cond/.

    Under the Court’s analysis in Becerra, ABA Model Rule 8.4(g) and rules derived from it, such as the 2020 Proposed Rules, represent unconstitutional content-based restrictions on lawyers’ speech. The Becerra Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. The Court repudiated the idea that professional speech is less protected by the First Amendment than other speech. Three federal courts of appeals had recently ruled that “‘professional speech’ [w]as a separate category of speech that is subject to different rules” and, therefore, less protected by the First Amendment. In abrogating those decisions, the Court stressed that “this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” 138 S. Ct. at 2371-72. The Court rejected the idea that “professional speech” was an exception “from the rule that content-based regulations of speech are subject to strict scrutiny.” Id.

    Under the Court’s analysis in Matal, ABA Model Rule 8.4(g) and rules derived from it, such as the 2020 Proposed Rules, are unconstitutional viewpoint-based restrictions on lawyers’ speech that cannot survive the strict scrutiny triggered by viewpoint discrimination. In Matal, all nine justices agreed that a provision of a longstanding federal law allowing government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons was unconstitutional because “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 S. Ct. at 1751. Justice Alito, writing for a plurality of the Court, noted that “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Id. at 1764.

    In his concurrence, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, Justice Kennedy stressed that “[t]he danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate,” particularly “if the ideas or perspectives are ones a particular audience might think offensive.” Id. at 1767. Justice Kennedy closed with a sober warning:
    A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
    Id. at 1769 (Kennedy, J., concurring).

    As to the 2020 Proposed Rules, many elements of ABA Model Rule 8.4(g) and its Comments [3], [4], and [5] appear in the 2020 Proposed Rules’ Comments [3], [4], and [5]. As discussed in CLS’ 2017 submission, those comments continue to be the source of many of the First Amendment concerns with the 2020 Proposed Rules, just as they were with the 2019 Proposed Rules.

    Moreover, the 2020 Proposed Rules, specifically 8.4(h), introduce a whole new set of concerns about chilling attorneys’ speech. By explicitly incorporating the Standards of Professionalism and Civility as a black letter rule, the Standards’ long list of aspirational guidelines becomes a fertile source of professional misconduct claims.

    For example, Proposed Rule 8.4(h) would make it professional misconduct for a lawyer to fail to “avoid hostile, demeaning, humiliating . . . conduct” (Standards of Professionalism and Civility, Std. 3), which its comment makes clear includes “expressing scorn, superiority, or disrespect.” This standard would seem to be unconstitutional under the Matal and Becerra analyses. Other Standards raise similar First Amendment concerns.

    Proposed Comment [5]’s assertion that the 2020 Proposed Rules “do[] not apply to expression or conduct protected by the First Amendment” does not mitigate the unconstitutional chilling effect on lawyers’ speech. In United States v. Stevens, the Supreme Court rejected the federal government’s defense that a statute was not unconstitutionally overbroad because the government had given assurances that it would only enforce the law as to “extreme” acts of animal cruelty. 559 U.S. 460, 480-81 (2010). The Court refused to “uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at 480. As the Court explained, “[t]he Government’s assurance that it will apply [the statute] far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” Id.

    III. Official Entities in Arizona, Idaho, Illinois, Montana, New Hampshire, South Carolina, South Dakota,
    Tennessee, and Texas Have Rejected ABA Model Rule 8.4(g), and Several Other States, including
    Nevada, Minnesota, North Dakota, and Louisiana, Have Abandoned Efforts to Impose It on Their
    Attorneys.

    Federalism permits one state to reap the benefit of other states’ experience. Prudence counsels waiting to see whether other states adopt ABA Model Rule 8.4(g), and then observing the effects of its real-life implementation on attorneys in those states. This is particularly true when ABA Model Rule 8.4(g) has failed close scrutiny by official entities in many states. McGinniss, supra, at 213-217.

    A. Several state supreme courts have rejected ABA Model Rule 8.4(g) or similar proposals.

    The Supreme Courts of Arizona, Idaho, Montana, South Carolina, South Dakota, and Tennessee have officially rejected adoption of ABA Model Rule 8.4(g). On March 9, 2020, the South Dakota Supreme Court announced that it would not adopt the proposed amendment to Rule 8.4 of the South Dakota Rules of Professional Conduct that had been submitted by the State Bar. The court wrote:

    After carefully considering the submissions received from those on both sides of this issue, the Court has unanimously decided to deny the proposed amendment to Rule 8.4. The Court is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.

    The court also announced that a commission would be appointed “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.”

    In a memorandum dated March 1, 2019, the Montana Supreme Court noted that it “chose not to adopt the ABA’s Model Rule 8.4(g)” after holding a six-month comment period in 2016-17. On August 30, 2018, after a public comment period, the Arizona Supreme Court rejected a petition from the Central Arizona Chapter of the National Lawyer Guild urging adoption of ABA Model Rule 8.4(g). On September 6, 2018, the Idaho Supreme Court rejected a resolution by the Idaho State Bar Association to adopt a modified version of ABA Model Rule 8.4(g).

    On April 23, 2018, after a public comment period, the Supreme Court of Tennessee denied a petition to adopt a slightly modified version of ABA Model Rule 8.4(g). The petition had been filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility. In June 2017, the Supreme Court of South Carolina rejected adoption of ABA Model Rule 8.4(g). The Court acted after the state bar’s House of Delegates, as well as the state attorney general, recommended against its adoption.

    On September 25, 2017, the Supreme Court of Nevada granted the request of the Board of Governors of the State Bar of Nevada to withdraw its petition urging adoption of Model Rule 8.4(g). In a letter to the Court, dated September 6, 2017, the State Bar President explained that “the language used in other jurisdictions was inconsistent and changing,” and, therefore, “the Board of Governors determined it prudent to retract [the Petition] with reservation to refile [it] when, and if the language in the rule sorts out in other jurisdictions.”

    B. State Attorneys General Have Identified Core Constitutional Issues with ABA Model Rule 8.4(g).

    In a seventeen-page letter that merits careful study, the Attorney General of Alaska masterfully detailed the flaws in a proposed rule on which the Alaska Bar Association had sought public comment. Letter from Attorney General Kevin Clarkson to Board of Governors of Alaska Bar Association, http://www.law.state.ak.us/pdf/press/190809-Letter.pdf. As the Alaska Attorney General explained:

    Parts of the Proposed Rule laudably promote professionalism and respect by attorneys to all individuals regardless of personal traits or characteristics. However, by regulating the expression of ideas and religious practices, Proposed Rule 8.4(f) burdens attorneys’ fundamental constitutional rights and threatens the core of what it means to be an attorney: protecting the rule of law, including the United States Constitution, and advocating zealously for clients.

    On September 5, 2019, the Board of Governors of the Alaska Bar Association unanimously voted to remand a version of ABA Model Rule 8.4(g) back to the Alaska Bar Association’s Rules Committee for further action. This decision followed the recommendation made on August 29, 2019, by the Chair of the Alaska Bar Association’s Rules of Professional Conduct Committee. The Rules Committee, having reviewed “unprecedented” “amounts of comments,” voted 8-1 to recommend to the Board of Governors that it not submit the proposed rule to the Alaska Supreme Court, but instead remand the matter back to the Rules Committee for further drafting. Public comment is open until August 10, 2020, on a revised proposal.

    In March 2018, the Attorney General of Tennessee filed Opinion 18-11, American Bar Association’s New Model Rule of Professional Conduct Rule 8.4(g), opposing adoption of a proposed rule closely modeled on ABA Model Rule 8.4(g). The Attorney General concluded that the proposed rule “would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.”

    In December 2016, the Texas Attorney General issued an opinion opposing ABA Model Rule 8.4(g). The Texas Attorney General stated that “if the State were to adopt Model Rule 8.4(g), its provisions raise serious concerns about the constitutionality of the restrictions it would place on members of the State Bar and the resulting harm to the clients they represent.” The Attorney General declared that “[c]ontrary to . . . basic free speech principles, Model Rule 8.4(g) would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues.”

    In September 2017, the Louisiana Attorney General concluded that “[t]he regulation contained in ABA Model Rule 8.4(g) is a content-based regulation and is presumptively invalid.” Because of the “expansive definition of ‘conduct related to the practice of law’ and its “countless implications for a lawyer’s personal life,” the Attorney General found the Rule to be “unconstitutionally overbroad as it prohibits and chills a substantial amount of constitutionally protected speech and conduct.”

    In May 2017, agreeing with the Texas Attorney General’s assessment of the unconstitutionality of ABA Model Rule 8.4(g), the Attorney General of South Carolina determined that “a court could well conclude that the Rule infringes upon Free Speech rights, intrudes upon freedom of association, infringes upon the right to Free Exercise of Religion and is void for vagueness.”

    In May 2018, the Arizona Attorney General filed a comment letter urging the Arizona Supreme Court to consider the opposition of other states, state attorneys general, and state bar associations to adoption of ABA Model Rule 8.4(g). He also noted the constitutional concerns that ABA Model Rule 8.4(g) raises as to free speech, association, and expressive association.

    C. The Montana Legislature Recognized the Problems that ABA Model Rule 8.4(g) Presents for
    Legislators, Hearing Witnesses, Staff, and Citizens.

    On April 12, 2017, the Montana Legislature adopted a joint resolution expressing its view that ABA Model Rule 8.4(g) would unconstitutionally infringe on the constitutional rights of Montana citizens. The Legislature urged the Montana Supreme Court not to adopt ABA Model Rule 8.4(g). The impact of Model Rule 8.4(g) on “the speech of legislative staff and legislative witnesses, who are licensed by the Supreme Court of the State of Montana to practice law, when they are working on legislative matters or testifying about legislation before Legislative Committees” greatly concerned the Montana Legislature.

    D. Various state bar associations have rejected ABA Model Rule 8.4(g).

    On December 10, 2016, the Illinois State Bar Association Assembly “voted overwhelmingly to oppose adoption of the rule in Illinois.” On October 30, 2017, the Louisiana Rules of Professional Conduct Committee, which had spent a year studying a proposal to adopt a version of Model Rule 8.4(g), voted “not to recommend the proposed amendment to Rule 8.4 to either the House of Delegates or to the Supreme Court.” On September 15, 2017, the North Dakota Joint Committee on Attorney Standards voted not to recommend adoption of ABA Model Rule 8.4(g), expressing concerns that it was “overbroad, vague, and imposes viewpoint discrimination” and that it might “have a chilling effect on free discourse by lawyers with respect to controversial topics or unpopular views.” The ABA describes Minnesota as having rejected ABA Model Rule 8.4(g), presumably in the state bar association.

    E. Only Vermont and New Mexico have fully adopted ABA Model Rule 8.4(g).

    In the four years since the ABA adopted its Model Rule 8.4(g), only Vermont and New Mexico have adopted it fully. In May 2019, the Maine Supreme Court announced that it had adopted a modified version of ABA Model Rule 8.4(g). The Maine rule is significantly narrower than the ABA Model Rule in several ways. First, the Maine rule’s definition of “discrimination” is substantially more circumscribed. Second, its definition of “conduct related to the practice of law” is much narrower because it does not include “participating in bar association, business or social activities in connection with the practice of law.” Third, it enumerates fewer protected categories. Despite these modifications, the Maine rule is still likely unconstitutional because it overtly targets protected speech.

    In July 2019, the New Hampshire Supreme Court specifically noted that it was not adopting ABA Model Rule 8.4(g) when it adopted its own distinctive rule. The New Hampshire Advisory Committee on Rules had proposed adoption of a rule closely modeled on ABA Model Rule 8.4(g), but the court declined to adopt it, explaining that “[i]n light of the nascent and ongoing discussion regarding the model rule, the court declines to adopt the rule proposed by the Advisory Committee on Rules.”

    In June 2020, the Pennsylvania Supreme Court, over one justice’s dissent, adopted a highly modified version to take effect December 8, 2020. The novel new rule is not limited to specific protected classes, but instead seems to prohibit any “words or conduct” that “knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone. Furthermore, the terms “bias,” “prejudice,” harassment,” or discrimination” are defined by “applicable federal, state, or local statutes or ordinances,” which seems to mean that words and conduct that are professional misconduct for a lawyer in Pittsburgh will not be for a lawyer in Lancaster.

    IV. Scholars Correctly Characterize Model Rule 8.4(g) as a Speech Code for Lawyers.

    Professor Eugene Volokh of UCLA School of Law, a nationally recognized First Amendment expert, has summarized his view that ABA Model Rule 8.4(g) is a speech code that will have a serious impact on attorneys’ speech in a short video for the Federalist Society at https://www.youtube.com/watch?v=AfpdWmlOXbA. Professor Volokh expanded on the many problems of ABA Model Rule 8.4(g) in a debate at the Federalist Society National Student Symposium at https://www.youtube.com/watch?v=b074xW5kvB8&t=50s.

    Professor Josh Blackman has explained that “Rule 8.4(g) is unprecedented, as it extends a disciplinary committee’s jurisdiction to conduct merely ‘related to the practice of law,’ with only the most tenuous connection to representation of clients, a lawyer’s fitness, or the administration of justice.” Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 241, 243 (2017).

    The late Professor Ronald Rotunda, a highly respected scholar in both constitutional law and legal ethics, early warned that ABA Model Rule 8.4(g) threatens lawyers’ First Amendment rights. Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting ‘Diversity’ But Not Diversity of Thought, The Heritage Foundation (Oct. 6, 2016), http://thf-reports.s3.amazonaws.com/2016/LM-191.pdf. Professor Rotunda and Texas Attorney General Ken Paxton debated two proponents of Rule 8.4(g) at the 2017 Federalist Society National Lawyers Convention at https://www.youtube.com/watch?v=V6rDPjqBcQg.

    Regarding the new rule, Professor Rotunda and Professor John S. Dzienkowski wrote, in the 2017-2018 edition of Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, “[t]he ABA’s efforts are well intentioned, but . . . raise problems of vagueness, overbreadth, and chilling protected speech under the First Amendment.” Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, ed. April 2017, “§ 8.4-2(j) Racist, Sexist, and Politically Incorrect Speech” & “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” in “§ 8.4-2 Categories of Disciplinable Conduct.”

    Dean Michael S. McGinniss, who teaches professional responsibility, recently “examine[d] multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, [and] socially conservative lawyers’ justified distrust of new speech restrictions.” Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173, 173 (2019).

    In a thoughtful examination of the rule’s legislative history, practitioners Andrew Halaby and Brianna Long concluded that “the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.” ABA Model Rule 8.4(g) “is riddled with unanswered questions, including but not limited to uncertainties as to the meaning of key terms, how it interplays with other provisions of the Model Rules, and what disciplinary sanctions should apply to a violation; as well as due process and First Amendment free expression infirmities.” They recommend that “jurisdictions asked to adopt it should think long and hard about whether such a rule can be enforced, constitutionally or at all.” Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 204, 257 (2017).
    Conclusion

    The 2020 Proposed Rules are so complicated and confusing that their constitutional and practical shortcomings seem irreparable. Utah lawyers deserve clear rules that allow them to speak and act confidently, knowing what does and does not trigger disciplinary sanctions. They should not be the subjects of the failed experiment that ABA Model Rule 8.4(g) represents. At a minimum, waiting to see what happens in the two states that have adopted ABA Model Rule 8.4(g) would seem the prudent course to take.

    For all these reasons, CLS respectfully requests that the Court reject the 2020 Proposed Rules. It is grateful to the Court for considering these comments.

     
  6. M.M. Youssef

    I oppose the Proposed Rule changes, including Proposed Rule 8.4(g) and Rule 8.4(h), as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. Please do not impose these rule changes on Utah lawyers.

     
  7. Jeffrey Squire

    I oppose the Proposed Rule changes, including Proposed Rule 8.4(g) and Rule 8.4(h), as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. Please do not impose these rule changes on Utah lawyers.

     
  8. Candace McCune

    As a Christian attorney and a member of the Christian Legal Society, both local chapter and national affiliation, plus serving as a Board member of the national organization, I respectfully urge the Court to reject the Proposed Rules that would make significant, detrimental changes to Rule 8.4 and the Standards of Professionalism and Civility.

    The Proposed Rules are too complex and confusing—which ultimately leads to rampant misuse, in my experience – and should not be imposed on Utah’s lawyers, or any other lawyers in other states, who deserve and need clarity in the Rules of Professional Conduct and the Standards of Professionalism and Civility.

    The Proposed Rules derive from the widely criticized, deeply-flawed ABA Model Rule 8.4(g). It is important to note that at least twelve states (Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, North Dakota, South Carolina, South Dakota, Tennessee, and Texas) have concluded, after careful study by their courts, attorneys general, or bar associations, that ABA Model Rule 8.4(g) is either unconstitutional, unworkable, or unwise.

    The practical effect of such rule change is, in real life, opening doors to misuse and twisted application by those claiming to follow such Rules but instead imposing their unconstitutional behavior on attorneys purely for unacceptable and improper reasons.

    After the ABA adopted Model Rule 8.4(g) in 2016, the United States Supreme Court issued two free speech decisions that make its unconstitutionality apparent. Under the Court’s analysis in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), Model Rule 8.4(g) is likely to be an unconstitutional content-based restriction on lawyers’ speech. The NIFLA Court held state restrictions on “professional speech” to be presumptively unconstitutional and subject to strict scrutiny.

    Do not be misled by thinking a change “might” be good when there are so many warning signs of the misuse and abuse that will be the result. And as take note from the above sources that “jurisdictions asked to adopt it should think long and hard about whether such a rule can be enforced, constitutionally or at all.” I join in their conclusion that “the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.” Id. at 206.

    I shudder to think of the direction this proposed change even considers taking us as practicing, real-world attorneys. I thank the Court for considering these comments.

     
  9. Alan Reinach

    I oppose the Proposed change to Rule 8.4(g) and 8.4(h) for many of the reasons already stated. They are expected to have a chilling effect on free speech. Political correctness is already too far advanced in our society. Now, to punish lawyers for speech violations is a gross abuse of their First Amendment rights. Utah rightly declined to adopt similar amendments twice before in 2017 and 2019. Give it up already!

     
  10. Thaddeus W. Wendt

    I oppose the Proposed Rule changes, including Proposed Rule 8.4(g) and Rule 8.4(h), as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. Please do not impose these rule changes on Utah lawyers. I believe the proposed rules changes create vague, overbroad categories of impermissible speech that will have a chilling affect on our profession and free speech rights at large. By it’s very nature, we, as lawyers and advocates, are placed in situations and positions where our conduct and language can appear, and often is, demeaning, disparaging, harmful, and disruptive to say the least. A prosecutor accusing a defendant of being racist as a motive or detailing alleged criminal conduct can easily be seen as acting in a demeaning, disparaging, harmful and disruptive manner. I doubt the intent of these proposed changes is to forbid the conduct in my example but, the unintended consequences of these proposed rule changes will certainly allow for these types of claims and, even if not ever pursued or enforced, will certainly deter free speech and zealous advocacy within our profession for fear of disturbing someones’ (even an adversarial parties’) sensibilities. I suggest that we slow this process down and seriously think through all of the unintended consequences before pushing through these changes.

     
  11. John Murdock

    I am not a member of the Utah Bar but I am an attorney who practices in neighboring Idaho. I oppose the Proposed Rule changes, including Proposed Rule 8.4(g) and Rule 8.4(h), as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. Free speech should be protected. The West has a long tradition of allowing individuals to speak their minds and that should be respected.

     
  12. Denver C. Snuffer

    Many valid concerns have already been raised about the breadth of this language, and the vague nature of what could be regarded as improper language or sanctionable misconduct. The “bootstrapping” of Federal regulatory laws, themselves subject to numerous claims from their impact on freedom of speech and association, is hardly a wise step.
    Advocacy sometimes requires a liar to be exposed. It sometimes requires a malignant act to be drawn into the light with vigorous and confrontational examinations, whether in a deposition or in the courtroom. Should a rule threaten the advocate’s ability to draw out the truth?
    Should a piercing examination be interrupted by threats from another attorney who represents the interests of the liar, based on a rule that allows that attorney to lodge a legitimate complaint based on these amendments?
    Shouldn’t ideas compete with one another in a playing field that welcomes any necessary form of speech that exposes, enlightens, clarifies and persuades, no matter if it offends these amendments?
    If we are to err, we ought to do so in favor of unfettered expression. Improper behavior is seldom rewarded by the finder of fact. But a finder of fact ought to be allowed to consider anything and everything the advocates, using their own common sense, believe to be helpful to understanding their position. These amendments curtail speech, and therefore are likely to interfere with the search for truth.

     
  13. Eric Todd Johnson

    Proposed Rule 8.4(g) and (h) will chill legal advocacy for under represented segments of society. Legal representation must be free and unrestricted in its ability to advocate for any and every member of society. This is particularly important to under represented segments of society. What American society has deemed discriminatory has changed over time, even since the 1964 Civil Rights Act was first adopted. It is reasonable and wise to expect future changes. That act does not apply to any individual in their personal capacity. The legal system must remain fully open, without chilling fears of ethical constraints, to represent each and every individual in their personal preferences. Where a law firm, or even a single attorney, elects to represent individuals with an unpopular viewpoint that some may claim is discriminatory, such attorney(s) must be free from worry and the chilling effect that their representation violates ethical standards. In hiring, an attorney must be free to hire someone who will not object to the personal preferences of their client(s). Proposed Rule 8.4(g) and (h) is at odds with the concept that courts must be open and freely available to all, especially the under represented. When Ghandi practiced law in South Africa, he largely represented people from his native country who lived in South Africa. It was their prerogative to prefer legal representation by someone of their own ethnic background and nationality. In turn, Ghandi must be free to employ staff and attorneys who likewise meet the preferences of his clients. It must be so for every attorney. Proposed Rule 8.4(g) and (h) would prohibit this, which would certainly constrain a client’s ability to select the legal representation of their choice. An ethical rule of professional responsibility should not prohibit an attorney from doing what their client can legally do. If it does, then certain clients will be left without zealous advocacy. Since 1964 what were once unpopular viewpoints, have actually become the law of the land. The ability to advocate such unpopular viewpoints and establish them as the standing law, will be harmed if proposed Rule 8.4(g) and (h) are adopted in the Utah Rules of Professional Conduct and related ethical rules.

     
  14. Catherine Christiansen

    I am not a memeber of the Utah Bar but I am an attorney who practices in neighboring California, a woman and a member of CLS. I oppose the Proposed Rule changes, including Proposed Rule 8.4(g) and rule 8.4(h) , as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. Free speech should be protected. The West has a long tradition of allowing individuals to speak their minds and that should be respected.
    Christian Legal Society (“CLS”) is a national association of Christian attorneys, law students, and law professors, founded in 1961, to help lawyers and law students integrate their faith with their practice of law. CLS has members in Utah. CLS’s current president, as well as its immediate past president, are women who have practiced law for a number of years. Women constitute a significant percentage of CLS’s attorney and law student members and leaders, and CLS opposes harassment and discrimination against women in the legal profession.
    For a number of constitutional and policy reasons, CLS urges the Utah Supreme Court not to adopt Proposed Rules 8.4(g) and 8.4(h) or the proposed changes to USB Rule 14-301.
    CLS commends two recent written analyses of ABA Model Rule 8.4(g) and rules derived from it. First, Professor Michael McGinniss, Dean of the University of North Dakota School of Law, recently produced a thoughtful, careful analysis of ABA Model Rule 8.4(g), entitled Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173 (2019), https://law.und.edu/_files/docs/features/mcginniss-expressingconsciencewithcandor-harvardjlpp-2019.pdf. Dean McGinniss “examine[d] multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, [and] socially conservative lawyers’ justified distrust of new speech restrictions.” Id. at 173.
    Second, last summer, the Alaska Attorney General wrote a seventeen-page letter to the Board of Governors of the Alaska Bar Association, opposing the modified version of ABA Model Rule 8.4(g) that the Board then had under consideration. Letter from Attorney General Kevin Clarkson to Board of Governors of Alaska Bar Association (Aug. 9, 2019), http://www.law.state.ak.us/pdf/press/190809-Letter.pdf. The Alaska Attorney General warned that “[t]he idea that the Proposed Rule could be used to suppress an attorney’s constitutionally protected speech on behalf of a client is far from speculative.” Id. at 10. The attorney general drew on his own personal experience when in private practice of being “unconstitutionally targeted with a complaint under municipal non-discrimination law for my representation of a faith-based women’s shelter before the Anchorage Equal Rights Commission.” Id. He expressed “little doubt that if the Proposed Rule is enacted, it will be weaponized in similar fashion to intimidate or punish attorneys for vigorously representing their clients.” Id. at 10-11.
    Sadly, we live at a time when many people, including lawyers, are willing to suppress the free speech of those with whom they disagree. See, e.g., Aaron Haviland, “I Thought I Could Be a Christian and Constitutionalist at Yale Law School. I Was Wrong,” The Federalist (Mar. 4, 2019), https://thefederalist.com/2019/03/04/thought-christian-constitutionalist-yale-law-school-wrong/ (student president of Yale Law School chapter of the Federalist Society describing significant harassment by other Yale Law students and student organizations because they did not like the ideas that they ascribed (accurately or inaccurately) to Federalist Society members and guest speakers).
    Many proponents of ABA Model Rule 8.4(g) and its derivative rules, such as the Utah 2020 Proposed Rules, sincerely believe that the Rule will only be used to punish lawyers who truly are bad actors. But recently we have witnessed too many times when people are punished,
    and their livelihoods placed at risk, for holding traditional religious views that may be currently disfavored by the popular culture. Indeed, simply supporting freedom of speech has become controversial, in and of itself, as we have seen in recent weeks when well-known liberal signatories to a letter were publicly pressured to recant their support for freedom of speech and tolerance of others’ differing beliefs. “J.K. Rowling Joins 150 Public Figures Warning Over Free Speech,” BBC (July 8, 2020), https://www.bbc.com/news/world-us-canada-53330105.
    We live in a time when the CEO of Mozilla lost his position because of his religious beliefs regarding marriage. “Did Mozilla CEO Brendan Eich Deserve to Be Removed from His Position?” Forbes (Apr. 11, 2014), https://www.forbes.com/sites/quora/2014/04/11/did-mozilla-ceo-brendan-eich-deserve-to-be-removed-from-his-position-due-to-his-support-for-proposition-8/#483d85c02158. The African-American Fire Chief of Atlanta, who was appointed the U.S. Fire Administrator by President Obama in 2009, was fired by the City of Atlanta because he wrote a book that discussed his religious beliefs regarding marriage and sexual conduct. Testimony Before the House Committee on Oversight and Government Reform on Religious Freedom & The First Amendment Defense Act, 114th Cong. (July 12, 2016) (statement of Kelvin J. Cochran).
    Lawyers, whether classical liberal, conservative, libertarian, or religious, understandably are unwilling to support a black letter rule that could easily be similarly misused to deprive them of their license to practice law. As Professor Volokh, a nationally recognized First Amendment expert, has explained in a short Federalist Society video, https://www.youtube.com/watch?v=AfpdWmlOXbA, ABA Model Rule 8.4(g) is a speech code for lawyers.
    The 2020 Proposed Rules are essentially the same as the 2019 Proposed Rules, and should not be adopted for the same reasons as the 2019 Proposed Rules were not adopted. CLS’s letter urging that the 2019 Proposed Rules not be adopted can be found here, and its letter regarding the 2017 Proposed Rules, here.
    I. This Court Should Not Subject Utah Attorneys to a Complicated and Confusing Set of Rules that Have Not Been Tested in Another State.
    A. The 2020 Proposed Rules are not necessary because Utah already has Rule of Professional Conduct 8.4(d) and its Comment [3].
    Utah Rule of Professional Conduct 8.4(d) currently provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Utah has adopted Comment [3] to that rule, which provides:
    A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A
    trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
    Utah R. Prof’l Conduct 8.4 cmt.3. Comment [3] is a verbatim adoption of the Comment [3] that accompanied ABA Model Rule 8.4 from 1998 to 2016.
    Because the 2020 Proposed Rules are experimental and risky, they should not be imposed on Utah attorneys. This is particularly true when there is readily available the prudent option of waiting to see what other jurisdictions decide to do and then observing the real-world consequences for attorneys in those states. There is no need for haste because current Rule 8.4(d) already prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and current Comment [3] to Rule 8.4 already deems bias and prejudice in the course of representing a client to be professional misconduct if the conduct is prejudicial to the administration of justice.
    B. Unraveling the 2020 Proposed Rules is tricky because of the interplay between the Proposed Changes to the Standards of Professionalism and Civility and new Proposed Rules 8.4(g) and (h).
    No state has adopted a rule like the 2020 Proposed Rules, which are a complex and confusing combination of elements of ABA Model Rule 8.4(g) with some disjointed elements of other states’ rules. The result is a set of rules, which if adopted, greatly expands the grounds upon which Utah lawyers may be subject to discipline.
    The Court was wise not to adopt the 2017 and 2019 Proposed Rules and should not adopt the 2020 Proposed Rules. Indeed, the 2020 Proposed Rules are quite similar to the 2019 Proposed Rules. Where there have been changes, they are largely for the worse.
    1. The 2020 Proposed Rules would make major changes to the Standards of Professionalism and Civility.
    Creating great confusion, the 2020 Proposed Rules amend the Standards of Professionalism and Civility so that violations of the Standards will now subject Utah lawyers to discipline for professional misconduct. Indeed, if the 2020 Proposed Rules were adopted, Proposed Standard 3 would become the primary black letter rule instead of Proposed Rule 8.4(g) or current Rule 8.4(d) with its current Comment [3].
    The interaction of the Proposed Rules 8.4(g) and 8.4(h) with the Proposed Standards – which would all be transformed into black letter rules themselves – is quite complicated. The main anti-discrimination black letter rule actually would not be found in Rule 8.4(g) or (h) but in Proposed Standard 3, which would now itself be a black letter rule like the rest of the Standards. A major change to the Standards is found in the final paragraph of the preamble, which would read as follows: “[T]he term ‘standard’ has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers.” Standards of Professionalism and Civility, Preamble (USB14-301 Amend. Draft May 15, 2020).
    Proposed Standard 3 would provide, in part, as follows:
    Standard 3 (in part): Lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code section 34A-5-106(1)(a), and federal statutes, as amended from time to time.
    Comment (in part): Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLEs; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.
    There are several problems to note with the Proposed Standard 3:
    • “Law-related activities” is broadly defined to include CLEs and firm parties;
    • “Discriminatory conduct” is broadly defined as including (but not limited to) “all discrimination against protected classes” enumerated in Utah and federal law. But note that this definition is not limited to what is actually unlawful under Utah and federal statutes. Standard 3 uses Utah and federal statutes merely to provide the list of “protected classes.” Standard 3 does not limit “discriminatory conduct” to unlawful conduct. A lawyer’s conduct could be deemed “discriminatory” and, therefore, subject to discipline even though the conduct was not unlawful under Utah or federal law;
    • The list will enlarge as state and federal statutes are amended or re-interpreted to include additional protected classes; and
    • As explained below, terms in Standard 3, including “demeaning” and “humiliating,” run afoul of the First Amendment’s prohibition on viewpoint discrimination in laws that restrict speech.
    2. The Standards of Professionalism and Civility should not be transformed into black letter rules.
    The 2020 Proposed Rules would convert the Standards of Professionalism and Civility – which were adopted to “encourage lawyers to meet their obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism” – from being aspirational guidance into black letter rules for which attorneys could be sanctioned for violating them.
    Specifically, the 2020 Proposed Rules would amend the Standards’ preamble to expressly state that “the term ‘standard’ has historically pointed to the aspirational nature of this rule. But Rule 8.4(g) now make the provisions of this rule mandatory for all Utah lawyers.” Proposed Rule 8.4(h) would read: “It is professional misconduct for a lawyer to . . . (h) egregiously violate, or
    engage in a pattern of repeated violations of Rule 14-301 [Standards of Professionalism and Civility] if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.”
    Among other changes, the 2020 Proposed Rules would amend the Standards to require lawyers to “avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” The definitions of both “discriminatory conduct” and “law-related activities” are expansive. “Discriminatory conduct” would “include[]” but not be limited to “all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code section 34A-5-106(1)(a), and federal statutes, as amended from time to time.” Id. “Law-related activities” would include “CLE’s; events sponsored by the Bar, Bar sections, or Bar Associations; and firm parties.”
    But the bigger problem with the 2020 Proposal Rules’ conversion of the Standards of Professionalism and Civility into black letter rules is that “aspirational” language typically does not have the specificity and clarity that the Constitution requires of rules that carry such heavy penalties for violations. Words like “demeaning” and “disparaging” are appropriate in aspirational guidance but are unconstitutional viewpoint discrimination when used to sanction lawyers’ speech. Cf., National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Matal v. Tam, 137 S. Ct. 1744 (2017).
    For these reasons, CLS urges the Court not to transform the Standards of Professionalism and Civility into black letter rules.
    3. The 2020 Proposed Rules would make major changes to Rule 8.4 by adding two new black letter rules.
    The 2020 Proposed Rules would add two new black letter rules to Rule 8.4 that make it professional misconduct to:
    Rule 8.4(g): engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or
    Rule 8.4(h): egregiously violate, or engage in a pattern of repeated violations of, Rule 14-301 if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.
    At first glance, Proposed Rule 8.4(g) seems to be tracking some states’ rules, such as Illinois’ rule, which require that a lawyer’s conduct be found to be “unlawful” by an adjudicatory body other than the bar disciplinary counsel before a charge of professional misconduct can be brought against the lawyer. Indeed, Illinois’s rule requires that the appeals be final before a
    charge can be brought by bar counsel. But on closer scrutiny, Proposed Rule 8.4(g) lacks key safeguards found in the Illinois rule.
    For instance, Proposed Rule 8.4(g) would make it professional misconduct for a lawyer to “engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act.” Because of the comma after “unlawful,” Proposed Rule 8.4(g) punishes more than an “unlawful” employment practice, but also punishes “discriminatory, or retaliatory” employment practices that are not necessarily “unlawful.” The use of the disjunctive “or” reinforces this reading. If the revised proposal is intended to be limited only to “unlawful” conduct, then the modifiers “discriminatory, or retaliatory” should be deleted. Otherwise there needs to be an explanation as to which “discriminatory, or retaliatory employment practice[s]” are not “unlawful” but nonetheless will be considered professional misconduct. CLS made this same comment regarding the same language in the 2019 Proposed Comments, but the problem was not corrected, adding to the concern that the language is not intended to be limited to “unlawful” conduct.
    Additionally, the Illinois rule requires that a judicial or administrative tribunal, other than a state bar tribunal, find that an attorney committed unlawful discrimination before the state bar may entertain a disciplinary complaint against the attorney. And any appeal must have been finalized before disciplinary action can be pursued. This requirement ensures that the attorney has been found to have engaged in unlawful conduct in a tribunal that provides the attorney with greater due process rights, access to discovery, and evidentiary protections than typically are available in the bar disciplinary process. The 2020 Proposed Rules should have included the requirement that any conduct found to be professional misconduct have been first adjudicated to be “unlawful” by a tribunal other than bar disciplinary process. CLS made this same comment regarding same language in the 2019 Proposed Comments, but no change was made.
    Finally, the term “employer” would be broadened to subject solo practitioners and firms with fewer than 15 employees to complaints of professional misconduct for their employment decisions. Solo practitioners and firms with fewer than 15 employees are not subject to Title VII claims of employment discrimination, but they will be subject to Proposed Rule 8.4(g).
    4. The 2020 Proposed Rules would add several problematic Comments to accompany Proposed Rules 8.4(g) and 8.4(h) that raise questions about a lawyer’s ability to decline representation of a client and other problems.
    The 2020 Proposed Rules would add several comments that combine elements of ABA Model Rule 8.4(g) with state and federal law, as well as other states’ rules, in a complicated and confusing way.
    a. Proposed Comment [4], first sentence.
    The first sentence of Proposed Comment [4] provides: “The substantive law of antidiscrimination and anti-harassment statutes and case law governs the application of
    paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense.”
    There are two things to note about this first sentence. First, as already noted, solo practitioners and small firms will be subject to discipline as employers.
    Second, Proposed Comment 4 provides that substantive antidiscrimination and anti-harassment law governs application of Proposed Rule 8.4(g), but there is no mention of either Proposed Rule 8.4(h) or Proposed Standard 3, both of which, if adopted, would be black letter rules prohibiting “discriminatory conduct in law-related activities.” Unlike Proposed Rule 8.4(g), Proposed Rule 8.4(h) and Standard 3 evidently are not to be “govern[ed]” by “[t]he substantive law of antidiscrimination and anti-harassment statutes.” This makes Proposed Rule 8.4(h) and Proposed Standard 3 broader than Proposed Rule 8.4(g).
    b. Proposed Comment [4], second sentence (first half).
    The first half of the second sentence of Proposed Comment [4] provides: “Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation, . . .”
    To the contrary, the 2020 Proposed Rules could limit Utah lawyers’ ability to accept, decline, or withdraw from a representation. The proponents of ABA Model Rule 8.4(g) generally claim that it will not affect a lawyer’s ability to refuse to represent a client and point to the Rule’s language that it “does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”
    Here’s the problem. Proposed Comment [4] mentions only Proposed Rule 8.4(g) and not Proposed Rule 8.4(h), which is significant because it is Proposed Rule 8.4(h) that extends to Proposed Standard 3. And it is Proposed Standard 3 that actually does more of the work than does Proposed Rule 8.4(g). According to the Proposed Rules’ plain text, the prohibition on “discriminatory conduct in law-related activities” found in Proposed Standard 3 would apply to a lawyer’s ability to accept, decline, or withdraw from a representation.
    This would be consistent with the Vermont Supreme Court’s understanding of ABA Model Rule 8.4(g). When Vermont became the first state to adopt the model rule, its supreme court explained in its accompanying Comment [4] that “[t]he optional grounds for withdrawal set out in Rule 1.16(b) must also be understood in light of Rule 8.4(g). They cannot be based on discriminatory or harassing intent without violating that rule.” The Vermont Supreme Court further explained that, under the mandatory withdrawal provision of Rule 1.16(a), “a lawyer should withdraw if she or he concludes that she or he cannot avoid violating Rule 8.4(g).”
    The New York State Bar Association Committee on Professional Ethics issued an opinion in January 2017 that concluded that “[a] lawyer is under no obligation to accept every person who may wish to become a client unless the refusal to accept a person amounts to unlawful discrimination.” N.Y. Eth. Op. 1111, N.Y. St. Bar Assn. Comm. Prof. Eth., 2017 WL 527371 (Jan. 7, 2017) (emphasis supplied.). In the facts before the Committee, a potential client requested a lawyer to represent him in a claim against a religious institution. Because the lawyer was of the same religion as the institution, the lawyer was unwilling to represent the person in a
    suit against the religious institution. Calling the definition of “unlawful discrimination” for purposes of New York’s Rule 8.4(g) a question of law beyond its jurisdiction, the Committee declined to “opine on whether a lawyer’s refusal to represent a prospective client in a suit against the lawyer’s own religious institution constitutes ‘unlawful discrimination’” for purposes of New York’s Rule 8.4(g).” (Emphasis supplied.)
    The Massachusetts Commission Against Discrimination found that a law firm that specialized in representing women in divorce cases had violated state nondiscrimination law when it refused to represent a man. Stropnicky v. Nathanson, 19 M.D.L.R. 39 (M.C.A.D. 1997), affirmed, Nathanson v. MCAD, No. 199901657, 2003 WL 22480688, 16 Mass. L. Rptr. 761 (Mass. Super. Ct. 2003). As these examples demonstrate, reasonable doubt exists that Rule 1.16 provides adequate protection for attorneys’ ability to accept, decline, or withdraw from a representation.
    Not surprisingly, law professors who teach professional responsibility agree that this is a genuine concern with ABA Model Rule 8.4(g), despite its inclusion of reassuring language. As the late Professor Rotunda and Professor Dzienkowski explain, Rule 1.16 actually “deals with when a lawyer must or may reject a client or withdraw from representation.” Rotunda & Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, ed. April 2017, in “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” (emphasis in original). Rule 1.16 does not address accepting clients. Moreover, as Professor Rotunda and Professor Dzienkowski observed, Comment [5] to ABA Model Rule 8.4(g) would seem to limit any right to decline representation, if permitted at all, to “limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations.”
    Dean McGinniss agrees that “[d]espite its ostensible nod of non-limitation, Model Rule 8.4(g) offers lawyers no actual protection against charges of ‘discrimination’ based on their discretionary decision to decline representation of clients, including ones whose objectives are fundamentally disagreeable to the lawyer.” McGinniss, supra, at 207-209. Because Model Rule 1.16 “addresses only when lawyers must decline representation, or when they may or must withdraw from representation” but not when they “are permitted to decline client representation,” Model Rule 8.4(g) seems to only allow what was already required, not declinations that are discretionary. Dean McGinniss warns that “if state bar authorities consider a lawyer’s declining representation . . . as ‘manifest[ing] bias or prejudice,’ they may choose to prosecute the lawyer for violating their codified Model Rule 8.4(g).” Id. at 207-208 & n.146.
    c. Proposed Comment [4], second sentence (second half)
    The second half of the second sentence of Proposed Comment [4] provides: . . . “nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules.” Again, this provision does not apply to Proposed Rule 8.4(h) or Proposed Standard 3, which prohibit “discriminatory conduct in law-related activities.” This language is drawn from ABA Model Rule 8.4(g) and, therefore, suffers from the same defect: language that appears to protect speech does not. The first problem is self-evident: Who gets to determine whether
    advocacy is “legitimate” or “illegitimate” under proposed ABA Model Rule 8.4(g)? The second problem is that the qualifying phrase “consistent with these rules” makes it utterly circular. Like the proverbial dog chasing its tail, the Proposed Comment protects “legitimate advice or advocacy” only if it is “consistent with” the Rule itself.
    As Andrew Halaby and Brianna Long note in their catalogue of the Rule’s problems, “the word ‘legitimate’ cries for definition.” Indeed, “one difficulty with the ‘legitimate’ qualifier – lawyers need to make the arguments in order to change the law, yet the new model rule obstructs novel legal arguments,” particularly when “the subject matter is socially, culturally, and politically sensitive.” They further assert that “[i]n fact, the proposed rule would effectively require enforcement authorities to be guided by their ‘personal predilections’ because whether a statement is ‘harmful’ or ‘derogatory or demeaning’ depends on the subjective reaction of the listener. Especially in today’s climate, those subjective reactions can vary widely.” Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 238 (2017).
    Dean McGinniss notes that this language especially concerns “lawyers with traditional religious or moral convictions, often disparaged as so-called bigotry in contemporary political and popular culture and which may be deemed illegitimate by state bar authorities.” McGinniss, supra, at 210.
    Likewise, the Tennessee Attorney General warned that “the [Board of Professional Responsibility] would presumably get to draw the line between legitimate and illegitimate advocacy, creating a further risk that advocacy of controversial or politically incorrect positions would be deemed harassment or discrimination that constitutes professional misconduct.” Tenn. Att’y Gen. Letter, Letter from Attorney General Slatery to Supreme Court of Tennessee (Mar. 16, 2018), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/foi/rule84g /comments-3-16-2018.pdf.
    d. Proposed Comment [4], third sentence
    The third sentence of Proposed Comment [4] provides: “Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g).”
    As already noted, Proposed Rule 8.4(g) gives the semblance of applying only to unlawful discriminatory conduct, seeming to follow Illinois’ example in its Illinois Rule of Professional Conduct 8.4(j). But the Illinois rule requires that a tribunal other than the bar disciplinary counsel have found the conduct to be unlawful discrimination, and appeal exhausted, before a charge will be brought. Proposed Comment 4 demonstrates that Proposed Rule 8.4(g) is not actually employing the Illinois rule as a model. Proposed Comment 4 makes clear that the disciplinary counsel process will be the tribunal of first resort for employment discrimination claims under Proposed Rule 8.4(g), as well as claims of “discriminatory conduct in law-related activities” brought under Proposed Rule 8.4(h) and Proposed Standard 3. This places a tremendous new burden on the bar’s disciplinary staff, as well as depriving accused lawyers of the greater due process, discovery opportunities, and evidentiary protections offered to the accused in other tribunals.
    e. Proposed Comment [4], fourth and fifth sentences.
    The fourth and fifth sentences of Proposed Comment [4] provide: “Lawyers may discuss the benefits and challenges of diversity and inclusion without violating paragraph (g). Unless otherwise prohibited by law, implementing or declining to implement initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).”
    Again, by specifying Proposed Rule 8.4(g) but not Proposed Rule 8.4(h) or Proposed Standard 3, the plain text suggest that lawyers may not discuss the benefits and challenges of diversity and inclusion, and that lawyers may not implement or decline to implement diversity and inclusion initiatives, without violating Proposed Rule 8.4(h) and Proposed Standard 3. If nothing else, Proposed Comment [4] supports the belief that the 2020 Proposed Rules, if adopted, will mean that there are permissible topics of discussion — and impermissible topics for discussion.
    II. Under the Analyses of Two Recent United States Supreme Court Decisions, ABA Model Rule 8.4(g) and Rules Derived from It Are Likely to be Found Unconstitutional.
    Since the ABA adopted Model Rule 8.4(g), the Supreme Court has issued two key free speech decisions that demonstrate its unconstitutionality, National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), and Matal v. Tam, 137 S. Ct. 1744 (2017). The ABA Section of Litigation published an article in which several section members concurred that the Becerra decision raises serious concerns about the rule’s overall constitutionality:
    Model Rule 8.4(g) “is intended to combat discrimination and
    harassment and to ensure equal treatment under the law,” notes
    Cassandra Burke Robertson, Cleveland, OH, chair of the Appellate
    Litigation Subcommittee of the Section’s Civil Rights Litigation
    Committee. While it serves important goals, “the biggest question
    about Rule 8.4(g) has been whether it unconstitutionally infringes
    on lawyers’ speech rights—and after the Court’s decision in
    Becerra, it increasingly looks like the answer is yes,” Robertson
    concludes.
    C. Thea Pitzen, First Amendment Ruling May Affect Model Rules of Professional Conduct: Is Model Rule 8.4(g) Constitutional?, ABA Section of Litigation Top Story (Apr. 3, 2019) (emphasis supplied), https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2019/first-amendment-ruling-may-affect-model-rules-prof-cond/.
    Under the Court’s analysis in Becerra, ABA Model Rule 8.4(g) and rules derived from it, such as the 2020 Proposed Rules, represent unconstitutional content-based restrictions on lawyers’ speech. The Becerra Court held that state restrictions on “professional speech” are presumptively unconstitutional and subject to strict scrutiny. The Court repudiated the idea that
    professional speech is less protected by the First Amendment than other speech. Three federal courts of appeals had recently ruled that “‘professional speech’ [w]as a separate category of speech that is subject to different rules” and, therefore, less protected by the First Amendment. In abrogating those decisions, the Court stressed that “this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” 138 S. Ct. at 2371-72. The Court rejected the idea that “professional speech” was an exception “from the rule that content-based regulations of speech are subject to strict scrutiny.” Id.
    Under the Court’s analysis in Matal, ABA Model Rule 8.4(g) and rules derived from it, such as the 2020 Proposed Rules, are unconstitutional viewpoint-based restrictions on lawyers’ speech that cannot survive the strict scrutiny triggered by viewpoint discrimination. In Matal, all nine justices agreed that a provision of a longstanding federal law allowing government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons was unconstitutional because “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 S. Ct. at 1751. Justice Alito, writing for a plurality of the Court, noted that “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Id. at 1764.
    In his concurrence, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, Justice Kennedy stressed that “[t]he danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate,” particularly “if the ideas or perspectives are ones a particular audience might think offensive.” Id. at 1767. Justice Kennedy closed with a sober warning:
    A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
    Id. at 1769 (Kennedy, J., concurring).
    As to the 2020 Proposed Rules, many elements of ABA Model Rule 8.4(g) and its Comments [3], [4], and [5] appear in the 2020 Proposed Rules’ Comments [3], [4], and [5]. As discussed in CLS’ 2017 submission, those comments continue to be the source of many of the First Amendment concerns with the 2020 Proposed Rules, just as they were with the 2019 Proposed Rules.
    Moreover, the 2020 Proposed Rules, specifically 8.4(h), introduce a whole new set of concerns about chilling attorneys’ speech. By explicitly incorporating the Standards of Professionalism and Civility as a black letter rule, the Standards’ long list of aspirational guidelines becomes a fertile source of professional misconduct claims.
    For example, Proposed Rule 8.4(h) would make it professional misconduct for a lawyer to fail to “avoid hostile, demeaning, humiliating . . . conduct” (Standards of Professionalism and Civility, Std. 3), which its comment makes clear includes “expressing scorn, superiority, or disrespect.” This standard would seem to be unconstitutional under the Matal and Becerra analyses. Other Standards raise similar First Amendment concerns.
    Proposed Comment [5]’s assertion that the 2020 Proposed Rules “do[] not apply to expression or conduct protected by the First Amendment” does not mitigate the unconstitutional chilling effect on lawyers’ speech. In United States v. Stevens, the Supreme Court rejected the federal government’s defense that a statute was not unconstitutionally overbroad because the government had given assurances that it would only enforce the law as to “extreme” acts of animal cruelty. 559 U.S. 460, 480-81 (2010). The Court refused to “uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at 480. As the Court explained, “[t]he Government’s assurance that it will apply [the statute] far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” Id.
    III. Official Entities in Arizona, Idaho, Illinois, Montana, New Hampshire, South Carolina, South Dakota, Tennessee, and Texas Have Rejected ABA Model Rule 8.4(g), and Several Other States, including Nevada, Minnesota, North Dakota, and Louisiana, Have Abandoned Efforts to Impose It on Their Attorneys.
    Federalism permits one state to reap the benefit of other states’ experience. Prudence counsels waiting to see whether other states adopt ABA Model Rule 8.4(g), and then observing the effects of its real-life implementation on attorneys in those states. This is particularly true when ABA Model Rule 8.4(g) has failed close scrutiny by official entities in many states. McGinniss, supra, at 213-217.
    A. Several state supreme courts have rejected ABA Model Rule 8.4(g) or similar proposals.
    The Supreme Courts of Arizona, Idaho, Montana, South Carolina, South Dakota, and Tennessee have officially rejected adoption of ABA Model Rule 8.4(g). On March 9, 2020, the South Dakota Supreme Court announced that it would not adopt the proposed amendment to Rule 8.4 of the South Dakota Rules of Professional Conduct that had been submitted by the State Bar. The court wrote:
    After carefully considering the submissions received from those on both sides of this issue, the Court has unanimously decided to deny the proposed amendment to Rule 8.4. The Court is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem.
    The court also announced that a commission would be appointed “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.”
    In a memorandum dated March 1, 2019, the Montana Supreme Court noted that it “chose not to adopt the ABA’s Model Rule 8.4(g)” after holding a six-month comment period in 2016-17. On August 30, 2018, after a public comment period, the Arizona Supreme Court rejected a petition from the Central Arizona Chapter of the National Lawyer Guild urging adoption of ABA Model Rule 8.4(g). On September 6, 2018, the Idaho Supreme Court rejected a resolution by the Idaho State Bar Association to adopt a modified version of ABA Model Rule 8.4(g). On April 23, 2018, after a public comment period, the Supreme Court of Tennessee denied a petition to adopt a slightly modified version of ABA Model Rule 8.4(g). The petition had been filed by the Tennessee Bar Association and the Tennessee Board of Professional Responsibility. In June 2017, the Supreme Court of South Carolina rejected adoption of ABA Model Rule 8.4(g). The Court acted after the state bar’s House of Delegates, as well as the state attorney general, recommended against its adoption.
    On September 25, 2017, the Supreme Court of Nevada granted the request of the Board of Governors of the State Bar of Nevada to withdraw its petition urging adoption of Model Rule 8.4(g). In a letter to the Court, dated September 6, 2017, the State Bar President explained that “the language used in other jurisdictions was inconsistent and changing,” and, therefore, “the Board of Governors determined it prudent to retract [the Petition] with reservation to refile [it] when, and if the language in the rule sorts out in other jurisdictions.”
    B. State Attorneys General Have Identified Core Constitutional Issues with ABA Model Rule 8.4(g).
    In a seventeen-page letter that merits careful study, the Attorney General of Alaska masterfully detailed the flaws in a proposed rule on which the Alaska Bar Association had sought public comment. Letter from Attorney General Kevin Clarkson to Board of Governors of Alaska Bar Association, http://www.law.state.ak.us/pdf/press/190809-Letter.pdf. As the Alaska Attorney General explained:
    Parts of the Proposed Rule laudably promote professionalism and respect by attorneys to all individuals regardless of personal traits or characteristics. However, by regulating the expression of ideas and religious practices, Proposed Rule 8.4(f) burdens attorneys’ fundamental constitutional rights and threatens the core of what it means to be an attorney: protecting the rule of law, including the United States Constitution, and advocating zealously for clients. On September 5, 2019, the Board of Governors of the Alaska Bar Association unanimously voted to remand a version of ABA Model Rule 8.4(g) back to the Alaska Bar Association’s Rules Committee for further action. This decision followed the recommendation made on August 29, 2019, by the Chair of the Alaska Bar Association’s Rules of Professional Conduct Committee. The Rules Committee, having reviewed “unprecedented” “amounts of comments,” voted 8-1 to recommend to the Board of Governors that it not submit the proposed rule to the Alaska Supreme Court, but instead remand the matter back to the Rules Committee for further drafting. Public comment is open until August 10, 2020, on a revised proposal.
    In March 2018, the Attorney General of Tennessee filed Opinion 18-11, American Bar Association’s New Model Rule of Professional Conduct Rule 8.4(g), opposing adoption of a proposed rule closely modeled on ABA Model Rule 8.4(g). The Attorney General concluded that the proposed rule “would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.”
    In December 2016, the Texas Attorney General issued an opinion opposing ABA Model Rule 8.4(g). The Texas Attorney General stated that “if the State were to adopt Model Rule 8.4(g), its provisions raise serious concerns about the constitutionality of the restrictions it would place on members of the State Bar and the resulting harm to the clients they represent.” The Attorney General declared that “[c]ontrary to . . . basic free speech principles, Model Rule 8.4(g) would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues.”
    In September 2017, the Louisiana Attorney General concluded that “[t]he regulation contained in ABA Model Rule 8.4(g) is a content-based regulation and is presumptively invalid.” Because of the “expansive definition of ‘conduct related to the practice of law’ and its “countless implications for a lawyer’s personal life,” the Attorney General found the Rule to be “unconstitutionally overbroad as it prohibits and chills a substantial amount of constitutionally protected speech and conduct.”
    In May 2017, agreeing with the Texas Attorney General’s assessment of the unconstitutionality of ABA Model Rule 8.4(g), the Attorney General of South Carolina determined that “a court could well conclude that the Rule infringes upon Free Speech rights, intrudes upon freedom of association, infringes upon the right to Free Exercise of Religion and is void for vagueness.”
    In May 2018, the Arizona Attorney General filed a comment letter urging the Arizona Supreme Court to consider the opposition of other states, state attorneys general, and state bar associations to adoption of ABA Model Rule 8.4(g). He also noted the constitutional concerns that ABA Model Rule 8.4(g) raises as to free speech, association, and expressive association.
    C. The Montana Legislature Recognized the Problems that ABA Model Rule 8.4(g) Presents for Legislators, Hearing Witnesses, Staff, and Citizens.
    On April 12, 2017, the Montana Legislature adopted a joint resolution expressing its view that ABA Model Rule 8.4(g) would unconstitutionally infringe on the constitutional rights of Montana citizens. The Legislature urged the Montana Supreme Court not to adopt ABA Model Rule 8.4(g). The impact of Model Rule 8.4(g) on “the speech of legislative staff and legislative witnesses, who are licensed by the Supreme Court of the State of Montana to practice law, when they are working on legislative matters or testifying about legislation before Legislative Committees” greatly concerned the Montana Legislature.
    D. Various state bar associations have rejected ABA Model Rule 8.4(g).
    On December 10, 2016, the Illinois State Bar Association Assembly “voted overwhelmingly to oppose adoption of the rule in Illinois.” On October 30, 2017, the Louisiana Rules of Professional Conduct Committee, which had spent a year studying a proposal to adopt a version of Model Rule 8.4(g), voted “not to recommend the proposed amendment to Rule 8.4 to either the House of Delegates or to the Supreme Court.” On September 15, 2017, the North Dakota Joint Committee on Attorney Standards voted not to recommend adoption of ABA Model Rule 8.4(g), expressing concerns that it was “overbroad, vague, and imposes viewpoint discrimination” and that it might “have a chilling effect on free discourse by lawyers with respect to controversial topics or unpopular views.” The ABA describes Minnesota as having rejected ABA Model Rule 8.4(g), presumably in the state bar association.
    E. Only Vermont and New Mexico have fully adopted ABA Model Rule 8.4(g).
    In the four years since the ABA adopted its Model Rule 8.4(g), only Vermont and New Mexico have adopted it fully. In May 2019, the Maine Supreme Court announced that it had adopted a modified version of ABA Model Rule 8.4(g). The Maine rule is significantly narrower than the ABA Model Rule in several ways. First, the Maine rule’s definition of “discrimination” is substantially more circumscribed. Second, its definition of “conduct related to the practice of law” is much narrower because it does not include “participating in bar association, business or social activities in connection with the practice of law.” Third, it enumerates fewer protected categories. Despite these modifications, the Maine rule is still likely unconstitutional because it overtly targets protected speech.
    In July 2019, the New Hampshire Supreme Court specifically noted that it was not adopting ABA Model Rule 8.4(g) when it adopted its own distinctive rule. The New Hampshire Advisory Committee on Rules had proposed adoption of a rule closely modeled on ABA Model Rule 8.4(g), but the court declined to adopt it, explaining that “[i]n light of the nascent and ongoing discussion regarding the model rule, the court declines to adopt the rule proposed by the Advisory Committee on Rules.”
    In June 2020, the Pennsylvania Supreme Court, over one justice’s dissent, adopted a highly modified version to take effect December 8, 2020. The novel new rule is not limited to specific protected classes, but instead seems to prohibit any “words or conduct” that “knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone. Furthermore, the terms “bias,” “prejudice,” harassment,” or discrimination” are defined by “applicable federal, state, or local statutes or ordinances,” which seems to mean that words and conduct that are professional misconduct for a lawyer in Pittsburgh will not be for a lawyer in Lancaster.
    IV. Scholars Correctly Characterize Model Rule 8.4(g) as a Speech Code for Lawyers.
    Professor Eugene Volokh of UCLA School of Law, a nationally recognized First Amendment expert, has summarized his view that ABA Model Rule 8.4(g) is a speech code that will have a serious impact on attorneys’ speech in a short video for the Federalist Society at https://www.youtube.com/watch?v=AfpdWmlOXbA. Professor Volokh expanded on the many
    problems of ABA Model Rule 8.4(g) in a debate at the Federalist Society National Student Symposium at https://www.youtube.com/watch?v=b074xW5kvB8&t=50s.
    Professor Josh Blackman has explained that “Rule 8.4(g) is unprecedented, as it extends a disciplinary committee’s jurisdiction to conduct merely ‘related to the practice of law,’ with only the most tenuous connection to representation of clients, a lawyer’s fitness, or the administration of justice.” Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(g), 30 Geo. J. Legal Ethics 241, 243 (2017).
    The late Professor Ronald Rotunda, a highly respected scholar in both constitutional law and legal ethics, early warned that ABA Model Rule 8.4(g) threatens lawyers’ First Amendment rights. Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting ‘Diversity’ But Not Diversity of Thought, The Heritage Foundation (Oct. 6, 2016), http://thf-reports.s3.amazonaws.com/2016/LM-191.pdf. Professor Rotunda and Texas Attorney General Ken Paxton debated two proponents of Rule 8.4(g) at the 2017 Federalist Society National Lawyers Convention at https://www.youtube.com/watch?v=V6rDPjqBcQg.
    Regarding the new rule, Professor Rotunda and Professor John S. Dzienkowski wrote, in the 2017-2018 edition of Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, “[t]he ABA’s efforts are well intentioned, but . . . raise problems of vagueness, overbreadth, and chilling protected speech under the First Amendment.” Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, ed. April 2017, “§ 8.4-2(j) Racist, Sexist, and Politically Incorrect Speech” & “§ 8.4-2(j)-2. The New Rule 8.4 and the Free Speech Problems It May Raise” in “§ 8.4-2 Categories of Disciplinable Conduct.”
    Dean Michael S. McGinniss, who teaches professional responsibility, recently “examine[d] multiple aspects of the ongoing Model Rule 8.4(g) controversy, including the rule’s background and deficiencies, states’ reception (and widespread rejection) of it, [and] socially conservative lawyers’ justified distrust of new speech restrictions.” Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y 173, 173 (2019).
    In a thoughtful examination of the rule’s legislative history, practitioners Andrew Halaby and Brianna Long concluded that “the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.” ABA Model Rule 8.4(g) “is riddled with unanswered questions, including but not limited to uncertainties as to the meaning of key terms, how it interplays with other provisions of the Model Rules, and what disciplinary sanctions should apply to a violation; as well as due process and First Amendment free expression infirmities.” They recommend that “jurisdictions asked to adopt it should think long and hard about whether such a rule can be enforced, constitutionally or at all.” Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 204, 257 (2017).
    Conclusion
    The 2020 Proposed Rules are so complicated and confusing that their constitutional and practical shortcomings seem irreparable. Utah lawyers deserve clear rules that allow them to speak and act confidently, knowing what does and does not trigger disciplinary sanctions. They should not be the subjects of the failed experiment that ABA Model Rule 8.4(g) represents. At a minimum, waiting to see what happens in the two states that have adopted ABA Model Rule 8.4(g) would seem the prudent course to take.
    For all these reasons, CLS respectfully requests that the Court reject the 2020 Proposed Rules. It is grateful to the Court for considering these comments.

     
  15. R. Shawn Gunnarson

    Despite well-intentioned revisions from the 2019 proposal, certain aspects of these amendments remain seriously troubling. Indeed, in today’s highly politicized environment, where many are clamoring for restrictions on speech, the proposed rules would threaten core First Amendment rights.

    1. Confusion and fair notice.

    The proposed amendments expand the meaning of “professional misconduct” by making substantial additions to Rule 14-301 of the Rules of Professionalism and Civility, as well as Rule 8.4 of the Rules of Professional Conduct. Understanding these new duties is complex. A conscientious reader will have to read the amendments multiple times to grasp how the amended versions of 14-301 and 8.4 interact. Even after rereading, important questions remain unresolved.

    Consider CLE presentations and law firm parties. A comment to Rule 14-301 includes them among the settings where the Rule applies. But comment 3 to Rule 8.4 limits the scope of conduct “prejudicial to the administration of justice” to activities undertaken “in the course of representing a client.” Although framed as a comment on paragraph (d), this comment appears to have a direct bearing on the meaning of 8.4(h), which applies if a violation of Rule 14-301 is “prejudicial to the administration of justice” Neither a CLE presentation nor a law firm party is generally understood as an activity “in the course of representing a client.” Yet the amendments do not address whether a “law-related activity” under 14-301 is subject to the mandate of 8.4(h) even when an activity does not occur “in the course of representing a client.” Nor do the amendments say whether “discriminatory conduct” at a CLE presentation or firm party may be the basis for professional discipline, regardless of whether it is covered by 8.4(h). The reader is simply left to parse the language for herself.

    Fair notice ought to be the baseline when subjecting lawyers to new duties, on pain of professional discipline. By that measure, these amendments fall short. They are confusing and invite unresolved questions on which discipline may turn.

    2. Chilling protected speech.

    Uncertainty about what speech or conduct subjects a lawyer to professional discipline will inevitably chill speech protected by the First Amendment. Rule 14-301 condemns “discriminatory conduct,” defined as “all discrimination against protected classes,” and an attached comment explains that this rule includes “manifesting bigotry, discrimination, or prejudice.” Similarly, Rule 8.4(h) forbids violations of 14-301 that are “prejudicial to the administration of justice”—a phrase elsewhere defined as “manifest[ing] by words or conduct bias or prejudice” against classes protected by state or federal civil rights law.

    Still another comment explains that “legitimate advocacy” regarding protected classes is not conduct “prejudicial to the administration of justice.” The reassurance is hollow. Nowhere do the amendments identify the line dividing “legitimate advocacy” from forbidden “bias or prejudice.” Although comment 5 adds that 8.4.(h) does “not apply to expression or conduct protected by the First Amendment,” these rules do not specify when an expression is legitimate or protected. (Not to mention that the inapplicability of state rules of professional discipline to constitutionally protected expression or conduct is a truism.) It is unclear whether the amendments prohibit lawyers from expressing opinions or advocating legal positions contrary to the interests of protected classes in a range of well-known public controversies, including:

     Laws and executive orders removing undocumented immigrants from the country;
     Regulations requiring an employer to include contraception in its health care plan;
     Regulations requiring an abortion provider to be admitted to a nearby hospital;
     A religious organization’s discharge of a gay or transgender employee for violation of the employer’s religious standards.

    Public controversies often center on conflicts arising from the legal treatment of a protected class. Especially hard questions come when the rights of one protected class vie with the rights of another, such as when a transgender woman seeks to compete in a women’s sporting event or when a woman seeks an abortion from a physician with sincere religious objections. Although civil rights law does not privilege one protected class over others, it would be all too easy to interpret the amendments as an injunction not to advocate the “wrong” side in such controversies.

    So understood, the amendments would chill speech on a wide range of public controversies. Such an ideologically charged rule would be especially problematic for Utah lawyers who represent clients with traditional religious beliefs about matters of public concern, or who themselves hold such beliefs. Faced with uncertainty, no sensible lawyer would risk his bar license by guessing at whether an adversarial tribunal will later decide that his expression was “legitimate” or “protected by the First Amendment.” Instead, the most rational thing would be to remain silent or steer clear of any generalizations about protected classes. In this way, the risk of professional discipline would prompt many lawyers to engage in self-censorship—harming not only their clients and themselves but “society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

    Chilling free speech appears to be an intended feature of these amendments. A more modest approach would confine professional sanctions to objectively disparaging statements, such as name-calling or fighting words—and any lawyer worth his salt could comply with such a rule. But by erecting a complex set of interlocking rules with vague warnings about “discriminatory conduct” and “manifestations” of bigotry or prejudice, the amendments effectively warn lawyers that taking unpopular positions vis-à-vis protected classes carries the risk of professional discipline. No matter how remote that risk might appear when reviewing the amendments in isolation, today’s hyper-partisan environment makes that risk a matter of genuine concern.

    No wonder First Amendment experts Professor Eugene Volokh and Professor Josh Blackman criticized the 2019 version of this proposal—a version containing the same proviso for constitutionally protected conduct and expression as in the current version—because it would “chill speech protected by the First Amendment.”

    3. Viewpoint discrimination.

    Perhaps most troubling, the amendments appear to punish certain opinions on matters of legitimate public controversy. A lawyer who “manifests by words or conduct bias or prejudice” based on a protected classification may be subject to professional discipline. Speech against a protected class is forbidden while speech in favor of the class is outside the rule and therefore permitted. A lawyer can safely advocate the right of a same-sex couple to act as foster parents, for instance, but advocating the right of a religious adoption agency to withhold services from same-sex couples could be deemed an expression of bias or prejudice on the basis of sexual orientation.

    Laws discriminating on the basis of a speaker’s viewpoint rarely survive strict scrutiny—even when the government asserts an interest in protecting historically vulnerable classes. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992). Rule 8.4(h) should be rejected on that ground alone.

    * * *

    Apart from these serious concerns, it’s worth adding that that the amendments reflect a minority view. Arizona, Idaho, Illinois, Louisiana, Minnesota, Montana, Nevada, North Dakota, South Carolina, South Dakota, Tennessee, and Texas—a dozen states from nearly every section of the country—have rejected ABA Model Rule 8.4(g) in its various permutations. Only Vermont and New Mexico have adopted it. Utah would take a hazardous step into the unknown to embrace novel rules that 85% of all states to consider them have spurned.

    A final point. It is exactly the wrong time to enact an amorphous rule that threatens to restrict speech and rigorous debate about matters related to race, ethnicity, gender, sexuality, and religion. These are the defining political and social issues of our times, and lawyers can and should make an important contribution to the democratic conversation. Except at extremes that all recognize and condemn, State Bar rules should not be used to silence, chill, dissuade, or even influence the content of speech—no matter how unpopular in certain quarters. Judges are already well-equipped to deal with rare instances of truly bigoted expression that harm the administration of justice. At this turbulent moment, the Court ought to shun any call to punish particular viewpoints and instead reaffirm freedom of speech as a foundational principle of our democracy.

     
  16. Austin Hepworth

    The proposed changes should be soundly rejected. I support the above comments that are in opposition to the rule, and reiterate that there are serious concerns to these proposed changes.

    I am troubled by the belief that we have to silence dissent or opposing views by outlawing ‘discrimination’. Currently, the term ‘discrimination’ has become so wide and embraces so much that it is impossible to separate ‘discrimination’ from religious beliefs, political views, lifestyle choices, or other important Constitutional freedoms. It is not possible to ban the modern, expanded form of ‘discrimination’ without also dictating the religious, political, and lifestyle types that are welcome to practice law.

    There is no need to make these changes. I have listened to Justice Himonas speak about the regulatory sandbox. It is common for attorneys to say, as the basis for rejecting the regulatory sandbox, that there will be all types of ethical violations with the changes. Justice Himonas’ consistent response is that attorneys are great at self-regulating. If that is the case, why are these changes needed? If that is not the case, why is the regulatory sandbox moving forward now too?

    We need to stop trying to protect everyone’s feelings. Lawyers hurt people’s feelings. It’s their job. Yes, it isn’t necessary to be rude, but truth hurts, and a lawyer’s job, prior at least to this proposed change, was to seek truth. Justice can only exist when truth can exist. Modern notions of ‘discrimination’ obscure truth though, as we aren’t allowed to even say that a boy is a boy anymore.

    Does an attorney discriminate when the attorney calls a man dressed as a woman a man instead of a woman? How does the attorney know if the court will consider the reference within the accepted scope of the rule or not? Does an attorney discriminate when the attorney argues that children are better off with their biological parents, instead of a homosexual foster couple? Is it discriminatory for an attorney to teach that there may be dangerous legal precedents being set by the BLM movement?

    In addition, the proposed changes now mandate 20 codes of conduct in Rule 14-301 that were previously aspirational. Do the Bar and the Courts really want to deal with all of the complaints? Are they ready to start parsing out when a deposition goes over the line and when it doesn’t? When an attorney’s client had a proper reason to seek default without notifying the other attorney? Not knowing where the hammer will fall will either cause a vast silencing effect on attorney’s efforts to find truth, where attorneys are afraid to get in trouble, or it will cause frustration and distrust for the system if everything isn’t enforced. I do not see how the Bar and the Courts are ready to deal with the resulting complaints that will arise as lawyer’s ‘harm another attorney’s client’ by their conduct that was previously required to represent their client and seek truth (as a side note, and back to the third paragraph, if no waive of complaints is anticipated, then this rule is not being made to address an actual problem…).

    Attorneys will have to deal with a myriad of professional misconduct complaints if they are working hard to pursue truth as they will ‘harm’ another attorney’s client with their efforts. Simply because an opposing party is in a protected class should not mean that they get special or different treatment in the legal system. Attorneys will constantly be forced to deal with the impossible conflicting standards of zealous client representation and not harming another attorney’s client by seeking truth or saying things that the other client does not want to hear.

    The Courts and the law should be an uncomfortable place for people to be as justice is often uncomfortable. The administration of justice can only occur when attorneys can zealously represent their clients’ interests. This proposed rule puts a huge damper on serious amounts of hot button topics that are shaping our current legal and political landscape. It is morally wrong to silence attorneys by threatening them with professional misconduct for their serious efforts to bring truth to light, even truths present with those in ‘protected’ classes. There is simply no reason that a person in a ‘protected’ class needs to be free of the robust review and challenges to their political, religious, or personal views that exists in the American legal system. If we remove the ability to seek truth, we remove justice.

    The proposed changes should be rejected, and an open forum and discussion should be highly encouraged, not banned.

     
  17. James Phillips

    I appreciate the proposed amendments’ attempt to make the practice of law more civil. As officers of the court, lawyers should be civil in their interactions with others. Discrimination and abuse of any kind have no place in our profession or in society as a whole.

    However, I fear these proposed amendments provide a cure that is worse than the disease. They do so by ignoring human nature. Psychologists have long recognized the phenomena of confirmation bias, wherein individuals see what they were already expecting to see. In other words, based on pre-existing attitudes or past experiences, individuals are primed to interpret evidence to confirm what they already believe. Thus, for instance, studies have shown how a speaker’s identity drives a listener’s conclusions about the merits of the message more so than the message. Switch the identity and the listener has a different reaction. (For a humorous example of this, see https://wjla.com/news/nation-world/college-students-denounce-trump-immigration-quotes-democrats-campus-reform.)

    These proposals fall right into this trap of human nature. The amendments avoid adopting an objective or reasonable standard and instead appear to adopt a subjective standard for vague concepts, such as discrimination, disrespect, disparagement, scorn, and the like. In other words, whether something is offensive will be determined by the person who is offended, a circular definition that will ensnare many the unsuspecting attorney. All of us have said something that was misinterpreted as an insult or criticism when nothing of the sort was intended. But now such misunderstandings will be the grounds for a disciplinary investigation, if not action.

    Other than the most egregious instances where most everyone agrees a word or deed has crossed the line, there will be little notice to attorneys as to what they can or cannot say and do under the proposed amendments. This not only has constitutional implications, but is hardly conducive to a profession that prides itself on open discussion and debate of society’s most contentious issues. Rather than civility, these proposals will just foster a fearful silence.

    I respectfully oppose these amendments in their current form.

     
  18. James Devereaux

    The proposed amendment to Rule 8, based on the ABA Model Rules of Professional Conduct, infringes on the core element of legal representation- that of speech. This rule runs afoul the basic principles necessary for representation, and even core aspects of American principles of jurisprudence. I oppose the proposed rule changes, including Proposed Rule 8.4 (g) and Rule 8.4(h), as well as the proposed changes to the Standard of Professionalism and Civility, USB 14-0301. My concerns are briefly summarized, as follows.

    1. Incorporating Title VII as cause of professional misconduct gives complaints a potential second run after first being tried through the EEOC and the Civil Rights Act. This would create opportunities to re-litigate claims arising from the same facts, regardless of their success or failure in different venues, taking aim not only at the remedies available under the Civil Rights Act but also the means of a lawyer’s ability to be employed.

    2. Rule 8.4(h) suffers from vagueness regarding what type of speech and where speech can be monitored, as the meaning of key terms is undetermined. Though many activities listed in the rule are clearly legal in nature, the rule specifically provides for additional types of activities. This vagueness opens the door for all complaints from unhappy clients or opposing parties based on views expressed in minimally connected venues. It may also reach into the nature of representation, as many lawyers represent clients in a variety of circumstance, from a variety of backgrounds. Much representation may blur the lines of advocacy and personal views that some may deem discriminatory.

    3. These rules appears to discriminate on the basis of viewpoint. See Matal v. Tam, 137 S. Ct. 1744 (2017).

    4. Last, legal advocacy is often attached to personal views or particular causes. Many lawyers, including myself, work at non-profit locations that hold views regarding the law. Though this rule has no foreseeable impact on my work currently, it certainly will have a chilling effect on many advocates who represent clients with their deeply held views in mind. The unknowns in these rules weigh in favor of passing on these changes.

    Utah is mostly a polite place, one which demands a certain level of civility through social and cultural norms. The Utah Bar, no doubt, reflects those personal commitments, but internalizing them in this manner is likely to yield a harm greater than the cure and impose unintended consequences. Good intentions are no safeguard for good results, and the aforementioned concerns weigh against imposing these rules.

     
  19. Larry Jenkins

    I oppose the adoption of the proposed revisions to Rule 8.4 of the Rules of Professional Conduct, as well as the proposed changes to Rule 14 301 of the Standards of Civility and Professionalism. Despite well-intentioned revisions from the 2019 proposal, certain aspects of these amendments remain seriously troubling, especially the threaten they pose to core First Amendment rights.

    Now is not the time to enact rules that may restrict speech and rigorous debate about matters related to race, ethnicity, gender, sexuality, and religion. These are some of the defining political and social issues of our times, and lawyers can and should make an important contribution to the democratic conversation. Except at extremes that all recognize and condemn, State Bar rules should not be used to silence, chill, dissuade, or even influence the content of such speech. These proposed amendments could fuel the fire by potentially making ideological conformity and self-censorship a condition of bar membership.

     
  20. Bryan K. Benard

    As a two decade-long leader on our firm’s diversity and inclusion committee, as well as having immediate family members who are of color and have experienced discrimination in their lives, I laud the effort to help further eradicate systemic discrimination and harassment in society and in the legal profession. However, I disagree that these amendments are the proper way to accomplish this.

    I have practiced employment law, on the employer/defense side, for nearly 25 years and have lead Holland & Hart’s employment practice group. These amendments greatly concern me about our ability as practitioners to adequately, appropriately, and vigorously defend our clients–which I believe is the primary purpose of lawyers.

    The chilling effect on adequate representation would come about like this: I am retained by company X to defend it against a claim of discrimination from former company X employee, named P. P asserts that she was discriminated against on the basis of her gender and age. I make Company X’s arguments. Company X loses a jury trial in state court 6-2–with a finding that Company X discriminated against her. Under this rule, it appears that I would have participated in such discrimination and violated these new rules by the mere fact I represented Company X that ultimately was found to be discriminatory. This is not an acceptable result.

    Further, let’s say that in her deposition or on cross-examination at trial, I have to push P on why she believes she was discriminated against, and she says something like “Company X thought I was dishonest.” So I push the question, “well were you dishonest?” and P (or her counsel) say “Now Mr. Benard you are discriminating me based on my gender just like your client did” and the lawyer says: “I agree, you are being discriminatory and you are violating the PROC–you have to stop this line of questions.” I do not see anything in the rules or comments that is clear enough to prevent such allegations being leveled against attorneys defending companies on discrimination claims. And while it sounds too hard to believe it would happen like that, I can point to hundreds of examples of this type of thing being alleged as discrimination by plaintiffs. Again, this is not a proper result but seems to be a real potential under these revisions.

    In addition, another clear problem exists when the amendments to Rule 804 and 14-0301 are viewed together: (a) the revision to Rule 804 applies Title VII (and presumably the Utah Antidiscrimination Act) to all lawyers and law firms–even if they do not employ 15 or more employees (the requirement for the applicability of Title VII to employers); (b) a lawyer at a law firm with only 12 employees brings a discrimination claim not based on Title VII (because it doesn’t apply) but based on Rule 804; (c) law firm retains me to defend against the claim; (d) I argue that Title VII does not apply, and even if the law firm had acted in a potentially discriminatory fashion, they are not subject to Title VII and should not be liable. By making such an argument, have I just violated Rule 14-0301? If I lose the argument, and I was defending the small law firm, but they are found to have actually discriminated, again, does that make me complicit in their conduct I was defending and therefore in violation of Rule 14-0301? By defending the inapplicability of Title VII have I violated the rule?

    Such results are simply not acceptable and appropriate if we are to provide meaningful and zealous representation of clients.

    These amendments are very reminiscent of rules that the National Labor Relations Board tried to implement with respect to union organizing. The rule tried to make attorneys personally liable for the advice given to, and the conduct of, their clients in opposing union organizing. Thankfully the NLRB recognized the improper chilling effect such a rule would have had on lawyers meaningfully representing employers in opposition to union organizing and the rule was dropped. These amendments should be too.

    IF, the intent here is to apply anti-discrimination and harassment provisions to a lawyer’s own individual (or a firm’s) employment practices, then I have less of a concern–except you need to make that much more clear (and the definition of “employer” does not currently fix this). And if that is the intent, then you need to make it much, much more clear that this does not prevent a lawyer from meaningfully and zealously advocating the client’s position and defending such clients. As written, these amendments will have a significant chilling effect on such advocacy and opens up many employment defense practitioners to unscrupulous arguments from opposing attorneys.

    At the very least, please carefully carve out that this does not prevent a lawyer from providing a proper defense to a client accused of discrimination, and does not, if the lawyer and that client actually lose the discrimination case, automatically make the lawyer “guilty” of discrimination since she/he advocated for his client’s position.

    Thanks for your consideration and I’m happy to further discuss @ bbenard@hollandhart.com

     
    1. Scott Hagen

      I agree with Bryan Benard’s comments. I am the Chair of the Employment Section at Ray Quinney & Nebeker. I’ve practiced in this area for nearly 30 years. I am concerned that these proposed rules could pose limitations on our ability to vigorously represent employers who are accused of discrimination and/or retaliation. I am concerned that these new rules could lead to accusations and bar complaints asserted by disgruntled plaintiffs in discrimination cases where we represented the employer. Such complaints could be asserted whether or not we are successful. They could be asserted even prior to a deposition as an intimidation tactic.

      I wholeheartedly oppose unlawful discrimination, but it should also be remembered that the vast majority of discrimination charges and discrimination turn out to be unfounded. I have heard at least one of our federal judges say that the highest proportion of frivolous cases filed in federal court (outside of prisoner cases) are employment discrimination cases. I have not heard of any scholarly studies that have concluded there is a serious problem with discrimination within small law firms, or with lawyers abusing or harassing witnesses or opposing parties on the basis of their race or other protected classification. I believe there should be a showing that we have a meaningful level of discrimination before we implement a new rule that could lead to negative consequences.

      Thank you.

       
  21. Randy Austin

    I add my voice to the growing chorus of opposition to proposed changes to the Rules of Professional Conduct, particularly Rule 8.4. The reasons for my opposition are already outlined above by others’ comments, so I will be brief. I believe that the proposed rules will have a chilling effect on First Amendment rights and will impact the robust debate that should exist in the marketplace of ideas. There is good reason that most states that have considered these amendments have rejected them. Please do not impose these ill advised restrictions.

     
  22. Justin C

    I agree with most of the other comments in opposition to the proposed changes to 8.4 and 14-301. This is especially impactful to sole practitioners and small firms who employ a very small team. Just as allowed by law, the sole practitioner or small firm owner should be able to choose who she is comfortable with hiring and working with daily one-on-one, without worrying about being disciplined by the bar. If an attorney prefers to have a female assistant (or a male assistant), she should be able to do so without fear of bar discipline. Or if an attorney works in a conservative area with older, conservative clients and is uncomfortable with a transgender individual being the face of the office, the attorney should have that ability to choose without fear of bar discipline.

    Please reject these proposed rules.

     
  23. Alexander Dushku

    I support the goal of reducing bias in the legal profession, but I oppose the proposed amendment to Rule 8 for many of the free-speech reasons stated above. Some may argue that because the rule as amended will be properly and sensibly administered, there is no need for concern. Unfortunately, the current moment reminds us that free-speech rights must be zealously guarded. Lawyers have the same right as other citizens to vigorously debate the issues of the day, including issues related to protected classes, without fear of professional discipline. Now more than ever we need legal voices debating the meaning of equal justice under law. Yet, sooner or later the proposed amendment will be used to investigate, punish or intimidate a lawyer for expressing his or her views during a vigorous debate among law firm colleagues, or for an unorthodox statement at a CLE. The result will be a profound and widespread chilling effect on the free exchange of ideas and viewpoints. That would be both unnecessary and tragic. Existing bar standards are sufficient to address instances of bigotry that adversely affect the administration of justice. The Utah Bar does not need an ill-defined speech code masquerading as a rule of professionalism and civility.

     
  24. Kelly Echols

    Reducing discrimination is important. In particular, for those of us who have benefited from so many privileges, reducing discrimination and its effects should be a personal and professional focus. That said, I oppose the adoption of the proposed revisions to Rule 8.4 of the Rules of Professional Conduct, as well as the proposed changes to Rule 14 301 of the Standards of Civility and Professionalism. Among a host of concerns with the proposed amendments, tying discrimination to state and federal statutes, as may be amended from time-to-time, creates the potential for serious unintended applications of the Rules in the future. An aspirational approach, rather than a mandatory approach, may be more suitable in this instance.

     
  25. Thaddeus W. Wendt

    IN THE UTAH SUPREME COURT

    Request for Public Comment on ) Joint Comment in Opposition to
    Proposed Amendments to Rule ) Proposed Amendments to Rule
    8.04 Rules of Professional Conduct ) 8.04 Rules of Professional Conduct
    and Rule 14-301 of the Standards of ) and Rule 14-301 of the Standards
    Professionalism and Civility ) Professionalism and Civility

    The Utah licensed attorneys listed below respectfully submit this Comment on the proposed amendments to Rule 8.04 of the Utah Rules of Professional Conduct and Rule 14-301 of the Standards of Professionalism and Civility.

    I. The Proposed Amendments
    It is being proposed that Rule 8.04 of the Utah Rules of Professional Conduct be amended by amending subsections (g) and (h) to the Rule so as to read as follows:
    It is professional misconduct for a lawyer to:

    (g) engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or

    (h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

    The proposed amendments would also amend the Comments to Rule 8.04 as follows:

    [3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race; color; sex; pregnancy, child birth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion, national origin; disability; sexual orientation; gender identity; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice. The protected classes listed in this paragraph are consistent with those enumerated in the Utah Antidiscrimination Act of 1965, Utah Code Sec. 34A-5-106(1)(a) (2016), and in federal statutes and is not intended to be an exhaustive list as the statutes may be amended from time to time. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s findings that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

    [4] The substantive law of antidiscrimination and anti-harassment statutes and case law governs the application of paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense. Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation, nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules. Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g). Lawyers may discuss the benefits and challenges of diversity and inclusion without violating paragraph (g). Unless otherwise prohibited by law, implementing or declining to implement initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).

    [5] Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution.

    [6] A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers should also be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay and their obligations under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by a lawyer of the client’s views or activities. See Rule 1.2(b).

    [9] This rule differs from ABA Model Rule 8.4(g) to the extent that it changes paragraph (g), adds new paragraph (h), and modifies the comments accordingly.

    Further, the proposed amendments would amend Rule 14-301 of the Standards of Professionalism and Civility as follows:

    Preamble . . . Finally, the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers.

    3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Neither written submissions or oral presentations shall disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law.

    Lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code sec. 34A-5-106(1)(a), and federal statutes, as amended from time to time.

    Comment. Lawyers should refrain from expressing scorn, superiority, or disrespect. [Unconstitutional] Legal process should not be issued merely to annoy, humiliate, intimidate, or harass. Special care should be taken to protect witnesses, especially those who are disabled or under the age of 18, from harassment or undue contention. Lawyers should refrain from acting upon or manifesting bigotry, discrimination, or prejudice toward any person in the legal process, even if a client requests it.

    Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.

    II. Comments

    A. The Proposed Amendments, for the First Time, Incorporate The Amended Standards of Professionalism and Civility Into the Rules of Professional Conduct.
    In order to fully appreciate the magnitude of the changes the proposed amendments would effect, one must note that, under the proposed amendments, violations of Utah’s Standards of Professionalism and Civility would, for the first time, constitute violations of the Rules of Professional Conduct. This is clear from two provisions of the proposed amendments.
    The first pertinent provision of the proposed amendments is proposed Rule of Professional Conduct 8.04(h), which provides that It is professional misconduct for a lawyer to:(h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 [of the Standards of Professionalism and Civility] if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice. Thus, the proposed amendments directly incorporate Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h) of the Rules of Professional Conduct.
    The other relevant provision is the proposed amendment to the Preamble of the Standards of Professionalism and Civility, which provides that: the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers (our emphasis).
    In other words, the proposed amendment to Rule of Professional Conduct 8.04(h) expressly incorporates Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h), and the proposed amendments to the Standards of Professionalism and Civility expressly recognize that the Standards are being made a mandatory rule for lawyers under proposed Rule 8.04(h).
    This is an important point because, by incorporating the proposed amendments to the Standards of Professionalism and Civility into the proposed amendments to the Rules of Professional Conduct, the advocates of the proposed amendments have proposed what appears to be a small and limited change to the face of the Rules of Professional Conduct – but have then greatly expanded that apparently small change by incorporating into the new Rule a much more expansive set of rules that share many of the constitutional and other infirmities of ABA Model Rule 8.4(g).
    Hence, in analyzing the effect of the proposed amendments, one must analyze together the proposed amendments to Rule 8.04 of the Rules of Professional Conduct and the proposed amendments to Rule 14-301 of the Standards of Professionalism and Civility, because the proposed amendments render them one and the same.
    For that reason, our comment on the proposed amendments to the Rules of Professional Conduct and the proposed amendments to the Standards of Professionalism and Civility will be considered together, as they must.

    B. The Proposed Amendments Are Unconstitutional.
    1. Attorney Speech is Constitutionally Protected.
    Citizens do not surrender their First Amendment speech rights when they become attorneys, including when they are acting in their professional capacities as lawyers. NAACP v. Button, 371 U.S. 415 (1963) (holding that “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”); see also Ramsey v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 771 S.W.2d 116, 121 (Tenn. 1989) (holding that an attorney’s statements that were disrespectful and in bad taste were nevertheless protected speech and use of professional disciplinary rules to sanction the attorney would constitute a significant impairment of the attorney’s First Amendment rights, and stating that “we must ensure that lawyer discipline, as found in Rule 8 of the Rules of this Court, does not create a chilling effect on First Amendment rights.”); Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1444 (9th Cir. 1995) (stating that the substantive evil must be extremely serious and the degree of imminence must be extremely high before an attorney’s utterances can be punished under the First Amendment).
    Indeed, the ABA itself has acknowledged this very principle in an amicus brief it filed in the case of Wollschlaeger. v. Governor of the State of Fla., 797 F.3d 859 (11th Cir. 2015). In its brief the ABA denied that a law regulating speech should receive less scrutiny merely because it regulates “professional speech.” “On the contrary” – the ABA stated – “much speech by . . . a lawyer . . . falls at the core of the First Amendment. The government should not, under the guise of regulating the profession, be permitted to silence a perceived ‘political agenda’ of which it disapproves. That is the central evil against which the First Amendment is designed to protect.” “Simply put” – the ABA stated – “states should not be permitted to suppress ideas of which they disapprove simply because those ideas are expressed by licensed professionals in the course of practicing their profession . . . Indeed,” – the ABA stated – “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression, and has repeatedly admonished that no new such classifications be created.”
    The ABA is, of course, correct in stating that “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression.” Indeed, the U.S. Supreme Court recently reiterated this principle in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), 2018 WL 3116336, in which it devoted a part of its opinion to the subject of professional speech, stating: “[T]his Court’s precedents have long protected the First Amendment rights of professionals. For example, this Court has applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, . . .The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information” (internal citations omitted). 138 S. Ct. 2361, 2374. The Court concluded that it was not presented with any persuasive reason for treating professional speech as a unique category of speech that is exempt from ordinary First Amendment principles.
    In short, attorneys do not surrender their constitutional rights when they enter the legal profession – including with respect to their professional speech – and the state may not violate attorneys’ constitutional rights under the guise of professional regulation.

     
  26. Thaddeus W. Wendt

    (Part 2 of 3)
    2. The Proposed Amendments Prohibit Constitutionally Protected Speech.
    Some proponents of the proposed amendments might contend that the amendments prohibit only conduct, not speech, and that any speech that is prohibited is speech that is merely incidental to the prohibited conduct. For that reason – they might claim – the amendments do not violate the First Amendment free speech rights of lawyers.
    But that is incorrect. The proposed amendments – particularly the proposed amendments to the Rules of Civility and Professionalism, which are, by incorporation, explicitly made a part of proposed Rule 8.04(h) – prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities;.” from making “written submissions or oral presentations [] [that] disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law;” from “expressing scorn, superiority, or disrespect;” and from “manifesting bigotry, discrimination, or prejudice toward any person in the legal process.” All these provisions prohibit pure speech.
    For that reason, the proposed amendments do not prohibit conduct that incidentally involves speech. Instead, the amendments prohibit speech that incidentally involves professional conduct. See Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harvard J. Law & Pub. Policy 173, 247 (2019).
    A relatively recent event in Minnesota illustrates the point. In May of 2018 the Minnesota Lavender Bar Association (“MLBA”) – “a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies, promoting fairness and equality for the LGBT community within the legal industry and for the Minnesota community” – objected to an accredited Continuing Legal Education presentation entitled “Understanding and Responding to the Transgender Moment/St. Paul,” which was co-sponsored by a Roman Catholic law school and addressed transgender issues from a Roman Catholic perspective. The MLBA complained that the CLE – which was pure speech – was “discriminatory and transphobic,” “encourages bias by arguing against the identities [of transgender people],” was contrary to the bar’s diversity efforts, and constituted “harassing behavior” under Rule 8.4(g) of the Model Rules of Professional Conduct. The MLBA further characterized the presentation as “transphobic rhetoric” and stated that “Discrimination is not legal education.” Minn. Lavender Bar Ass’n, https://gumroad.com/mlba (last visited Apr. 2, 2019). As a result of the MLBA’s complaint, the CLE accrediting body of the Minnesota Bar revoked its CLE accreditation of the presentation – reportedly the first time such retroactive revocation of CLE credit had ever occurred in Minnesota. See Barbara L. Jones, CLE credit revoked, Minnesota Lawyer (May 28, 2018).
    In this real-life example, the complained of behavior consisted of pure speech, was alleged to constitute harassment and discrimination – and was punished by the state. And the same result could occur under the amendments proposed here, because the amendments prohibit speech that could be considered by some as “hostile, demeaning, humiliating, or discriminatory” “in law-related activities,” specifically including CLE’s and other Bar events.
    Thus, it is clear that the proposed amendments do, in fact, prohibit lawyer speech. And, as is discussed below, much of that speech is constitutionally protected. By prohibiting and threatening to punish attorneys for engaging in constitutionally protected speech, the proposed amendments violate attorneys’ free speech rights.

    3. The Proposed Amendments Are Unconstitutionally Vague.
    Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. And the lack of such notice in a law that regulates expression raises special First Amendment concerns because of its obvious chilling effect on free speech. For that reason, courts apply a more stringent vagueness test when a regulation interferes with the right of free speech. Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010).
    Vague laws present several due process problems. First, such laws may trap the innocent by not providing fair warning. Second, vague laws delegate policy matters to state agents for enforcement on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. And third, such laws lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
    (a) The Terms “Hostile, Demeaning, Humiliating, Discriminatory, Disparag[ing], “Expressing Scorn, Superiority, or Disrespect,” or “Manifesting Bigotry, Discrimination, or Prejudice” are all Unconstitutionally Vague.
    The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process.” However, these terms are not defined in the proposed amendments and, therefore, do not give lawyers sufficient guidance as to what behavior is being proscribed.
    For example, the word “hostile” simply means “antagonistic,” “not friendly, warm, or generous,” “not hospitable.” https://www.dictionary.com/browse/hostile# (last visited 7/7/2020). But lawyers commonly engage in speech and conduct that others could consider antagonistic, unfriendly, ungenerous, and inhospitable. Sending a demand letter or threatening to file or filing a lawsuit against someone are themselves inherently antagonistic and unfriendly acts. And lawyers oftentimes engage in behavior that is inherently “antagonistic” or “unfriendly” in depositions, settlement negotiations, and even transactional negotiations. So how is an attorney to know what sorts of speech and conduct are prohibited by the amendments and which are not? Under Title VII, a “hostile” work environment is prohibited, but in the Title VII employment context prohibited hostility does not mean a mere offensive utterance. Faragher v. City of Boca Raton, 524U.S. 775, 777-78(1998). Under the proposed amendments, though, no such limiting definitions are provided to assist lawyers in determining which behaviors violate the amendments and which do not. Therefore, attorneys are left to guess – at their peril – whether their behavior, expressed in an inherently adversarial judicial system, may violate the proposed amendments.
    Similarly, the word “demeaning” simply means “debasing” or “degrading.” http://www.dictionary.com/browse/demeaning# (last visited 7/7/2020). But, again, lawyers – operating in the American adversarial system of justice – commonly engage in speech and conduct that others could consider to be debasing or degrading. So how is an attorney to know what sort of speech and conduct is prohibited by the amendments and which is not?
    The word “humiliating” means “lowering the pride, self-respect, or dignity of a person.” http://www.dictionary.com/browse/humiliating# (last visited 7/7/2020). But, again, lawyers commonly engage in speech and conduct that others would probably consider humiliating. Is it not humiliating to every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sort of speech and conduct is prohibited by the amendments and which is not?
    The term “discriminatory” is also unconstitutionally vague. One might contend that the word “discriminatory” is widely used and easily understood. And it is certainly true that many statutes and ordinances prohibit discrimination, in a variety of contexts. But it is also true that such statutes and ordinances do not – as does the proposed amendments – merely prohibit “discrimination” and leave it at that. Rather, they spell out what specific behavior constitutes discrimination. For example, the federal Fair Housing Act provides a detailed description of what sorts of acts, specifically, are prohibited under the Act in the context of housing. See 42 U.S.C. § 3604. Similarly, Title VII specifies what sorts of acts constitute discrimination under the statute in the context of employment. See 42 U.S.C. § 2000e-2. Although proposed Rule8.4(g), which is limited to the employment context, would address this category of discrimination and theoretically be limited by it, proposed Rule 8.4(h) would not because proposed Rule 8.4(h) applies to attorney speech and conduct generally and outside the employment context. Proposed Rule 8.4(h) simply prohibits “discriminatory conduct in law-related activities.”– thereby leaving to the attorney’s imagination what sorts of speech and behavior might be encompassed in that proscription.
    The word “disparaging” means “to speak of or treat slightingly; depreciate; belittle” or “to bring reproach or discredit upon” or “lower the estimation of.” http://www.dictionary.com/browse/disparage# (last visited 7/7/2020). But, again, is it not disparaging for every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sorts of speech and conduct are prohibited by the amendments and which are not? Would some not consider a lawyer who – at a CLE addressing transgender issues – questions whether men can be women or women be men, to be depreciating or belittling transgender individuals and, therefore, in violation of the proposed amendments?
    To “scorn” means “to treat or regard with contempt or disdain http://www.dictionary.com/browse/scorn# (last visited 7/7/2020) and the word “disrespect” means to be discourteous or rude. http://www.dictionary.com/browse/disrespect# (last visited 7/7/2020). Under the proposed amendments, would an attorney who, at a law firm dinner party, expresses her Roman Catholic religious belief that homosexual behavior is fundamentally disordered, be in violation of the rule, since some would consider such a belief as disrespecting homosexual individuals and regarding them with contempt or disdain?
    (b) The Term “Harm” is Unconstitutionally Vague.
    Proposed Rule 8.4(h) prohibits attorneys from violating Rule 14-301 of the Standards of Professionalism and Civility – which prohibits lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process” – if such violations “harm the lawyer’s client or another lawyer’s client” (our emphasis).
    However, the term “harm” is unconstitutionally vague because attorneys cannot determine with any degree of reasonable certainty what speech and conduct may “harm” the lawyer’s client or another lawyer’s client under the Rule. Indeed, the word “harm” encompasses a wide range of injury, from “physical injury or mental damage” to “hurt” to “moral injury; evil; [and] wrong.” Harm, Dictionary.com, http://www.dictionary.com/browse/harm (last visited July 7, 2020). So “harm” to a client, whether one’s own or another attorney’s, can encompass an almost limitless range of allegedly injurious effects on others. Mental damage, for example, could easily be interpreted to include real, imagined, or even feigned, emotional distress at being exposed to expression someone finds offensive or upsetting. And a whole host of expressions could subjectively considered “morally injurious,” “evil,” or “wrong.”
    Remember that speech does not lose its constitutional protection just because it is “harmful.” See, e.g., Snyder v. Phelps, 562 U.S. 443, 458 (2011) (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995) (stating that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (noting that an interest in protecting bystanders from feeling offended or angry is not sufficient to justify a ban on expression); Boos v. Barry, 485 U.S. 312, 321 (1988) (striking down a ban on picketing near embassies where the purpose was to protect the emotions of those who reacted to the picket signs’ message). See also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (stating that “new categories of unprotected speech may not be added to the list [of unprotected speech – such as obscenity, incitement, and fighting words] by a legislature that concludes certain speech is too harmful to be tolerated”) (emphasis added).
    Indeed, the U.S. Supreme Court has stated that the idea that free speech protection should be subject to a balancing test that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test, is a “startling and dangerous” proposition. Id. at 792; see also United States v. Stevens, 559 U.S. 460, 470 (2010) (holding that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”)
    (c) The Phrase “Law-Related Activities” is Unconstitutionally Vague.
    The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” And the proposed amendments go on to define “law-related activities” to “include, but [are] not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.
    It hardly need be said, though, that what conduct is “law-related” and what conduct is not, is vague and subject to reasonable dispute.
    The phrase is vague, first, because the term “law-related” need not be related to the practice of law, or even the professional activities of lawyers, at all.
    Considering some hypothetical situations brings the problem into focus. It is clear that the proposed prohibitions would apply to comments made by an attorney while attending a law firm retirement party for a law firm co-worker, because the proposed rule expressly applies to firm parties. But would it also include comments made while the attorneys are walking to their vehicles after the party has ended? Would it apply to comments one attorney makes to another while car-pooling to or from work? Would it include comments an attorney makes while teaching a religious liberty law class at the attorney’s church? Or sitting on his church’s governing board, where he is sometimes asked for his professionally informed opinion on some matter before the board? Or when attending an alumni function at the law school the attorney attended? Or when publishing a letter to the editor of a newspaper when the author is identified therein as a lawyer? Or, for that matter, in any behavior in which the actor is identified as being a lawyer? The answers to these inquiries are far from self-evident.
    And it is not just our opinion that the phrase “law-related activities” is unconstitutionally vague. The Chair of the ABA Policy & Implementation Committee, which is charged with advocating for the Model Rules of Professional Conduct, while serving on an ABA CLE panel discussing Model Rule 8.4(g), was asked what the phrase “related to the practice of law” in Model Rule 8.f(g) meant? In response, he stated “I don’t have an answer for you.” “It is extraordinarily broad.” “I don’t know where it begins or where it ends.” Model Rule 8.4 – Update, Discussion, and Best Practices in a #MeToo World, August 2, 2018. And the phrase “law-related activities” is even broader than “related to the practice of law” because the phrase “law-related activities” is not limited to attorney speech and conduct in “the practice of law.”
    Because a lawyer cannot, with any degree of reasonable certainty, determine what behavior of an attorney is “law-related” and what is not, the proposed amendments are unconstitutionally vague.

    If attorneys face professional discipline for engaging in certain proscribed behavior, they are entitled to know, with reasonable precision, what behavior is being proscribed, and should not be left to speculate what the proscription might encompass. Anything less is a deprivation of due process.
    Because of the vagueness of many of the proposed amendments’ essential terms, the proposed amendments are unconstitutional.

    4. The Proposed Amendments Are Unconstitutionally Overbroad.
    Even if a law is clear and precise – thereby avoiding a vagueness challenge – it may nevertheless be unconstitutionally overbroad if it prohibits constitutionally protected speech.
    Overbroad laws – like vague laws – deter protected activity. The crucial question in determining whether a law is unconstitutionally overbroad is whether the law sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned, 408 U.S. at 114-15.
    Although some of the speech the proposed amendments prohibit might arguably be unprotected – such as speech that actually and seriously prejudices the administration of justice by undermining a specific judicial proceeding, or speech that would actually and clearly render an attorney unfit to practice law – the proposed amendments would also sweep within their prohibitions lawyer speech that is clearly protected by the First Amendment, such as speech that might be considered, at least by some, as constituting “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process,” but that would not prejudice the administration of justice nor render the attorney unfit to practice law. DeJohn v. Temple Univ., 537 F.3d 301 (2008) (holding that a University Policy on Sexual Harassment that prohibited “all forms of sexual harassment . . . including expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment” was unconstitutionally overbroad on its face).
    Speech is not unprotected merely because it is harmful, derogatory, demeaning, or even discriminatory or harassing. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001) (holding that there is no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs; harassing or discriminatory speech implicate First Amendment protections; there is no categorical rule divesting “harassing” speech of First Amendment protection).
    Indeed, offensive, disagreeable, and even hurtful speech is exactly the sort of speech the First Amendment protects. Snyder, 562 U.S. at 458 (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley, 515 U.S. at 574 (noting that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); see also Johnson, 491 U.S. at 414 (stating that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); see also Matal v. Tam, 137 Sup. Ct. 1744 (2017) (stating that the government’s attempt to prevent speech expressing ideas that offend strikes at the heart of the First Amendment) and Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019)(observing that “regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be”).
    In fact, courts have specifically found that terms such as “derogatory” and “demeaning” are unconstitutionally overbroad. Hinton, 633 F.Supp. 1023 (holding that the term “derogatory information” is unconstitutionally overbroad); Summit Bank, 206 Cal. App. 4th 669 (finding that a statute defining the offense of making or transmitting an untrue “derogatory” statement about a bank is unconstitutionally overbroad because it brushes constitutionally protected speech within its reach and thereby creates an unnecessary risk of chilling free speech); see also Saxe, 240 F.3d 200 (holding that a school anti-harassment policy that banned any unwelcome verbal conduct which offends an individual because of actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics is facially unconstitutional because it is overbroad).
    The broad reach of the proposed amendments are well illustrated by the fact that the amendments specifically extend their reach to “firm parties.” This broad reach is the same problem presented by ABA Model Rule 8.4(g). Senior Ethics Counsel Lisa Panahi and Ethics Counsel Ann Ching of the Arizona State Bar, in their January 2017 article “Rooting Out Bias in the Legal Profession: The Path to ABA Model Rule 8.4(g),” in the Arizona Attorney, stated that an attorney could be professionally disciplined under Model Rule 8.4(g)’s prohibition on discriminatory or harassing conduct in business or social activities “related to the practice of law” for telling an offensive joke at a law firm dinner party. The late Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, Ronald Rotunda, provided another example of the broad reach of broad professional rules like the one being proposed here. Writing of ABA Model Rule 8.4(g), he stated: “If one lawyer tells another, at the water cooler or a bar association meeting on tax reform, ‘I abhor the idle rich. We should raise capital gains taxes,’ he has just violated the ABA rule by manifesting bias based on socioeconomic status.” Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Legal Memorandum No. 191 at 4, The Heritage Foundation (Oct. 6, 2016). (The same result would ensue under the amendments proposed here because, although the protected classes under the proposed amendments do not, like ABA Model Rule 8.4(g), include “socioeconomic status,” the proposed amendments prohibit lawyers from engaging in any “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities” without limiting such discrimination to those particular protected classes.)
    But the speech in both these examples would clearly be constitutionally protected. The fact that such constitutionally protected speech would violate the proposed Rule demonstrates that the Rule is unconstitutionally overbroad.
    Indeed, regardless of whether any attorney is ultimately prosecuted under the proposed amendments for engaging in protected speech, the mere possibility that a lawyer could be disciplined for engaging in such speech would, in and of itself, chill lawyers’ speech – which is precisely what the overbreadth doctrine is designed to prevent. Massachusetts v. Oakes, 491 U.S. 576, 584 (1989) (noting that overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression.).
    Therefore, because the proposed amendments will prohibit a broad swath of protected speech and would chill lawyers’ speech, the amendments would not pass constitutional muster.

    5. The Proposed Amendments Will Constitute Unconstitutional Content-Based Speech Restrictions.
    In proscribing speech that is hostile, demeaning, humiliating, or discriminatory toward members of certain designated classes, the proposed Rule will constitute an unconstitutional content-based speech restriction. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (explaining that government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.); see also Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456 (S.D.N.Y. 2012) (holding that an ordinance prohibiting demeaning advertisements only on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation is an unconstitutional content-based violation of the First Amendment).
    Indeed, the U.S. Supreme Court recently reiterated this principle in a case that is directly relevant when considering the constitutional infirmities of the proposed amendments. In Tam, the Court found that a Lanham Act provision – prohibiting the registration of trademarks that may “disparage” or bring a person “into contempt or disrepute” – facially unconstitutional, because such a disparagement provision – even when applied to a racially derogatory term – “. . . offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 Sup. Ct. 1744. In a concurring opinion joined by four Justices, Justice Kennedy described the constitutional infirmity of the disparagement provision as “viewpoint discrimination” – “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” Id. at 1766. The problem, he pointed out, was that, under the disparagement provision, “an applicant may register a positive or benign [trade]mark but not a derogatory one” and that “This is the essence of viewpoint discrimination.” Id. Likewise, under the proposed Rule here, attorneys may engage in positive or benign speech with regard to the protected classes, but not derogatory, demeaning, or harmful speech. Under the Supreme Court’s Tam decision, this is the essence of viewpoint discrimination, and presumptively unconstitutional.
    The late Professor Rotunda provided a concrete example of how the professional rules like the amendments proposed here may constitute an unconstitutional content-based speech restriction, stating that “At another bar meeting dealing with proposals to curb police excessiveness, assume that one lawyer says, ‘Black lives matter.’ Another responds, ‘Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime.’ A third says, ‘All lives matter.’ Finally, another lawyer says (perhaps for comic relief), ‘To make a proper martini, olives matter.’ The first lawyer is in the clear; all of the others risk discipline.” Rotunda, supra.
    Under the proposed amendments, the content of a lawyer’s speech will determine whether or not the lawyer has or has not violated the rule. For example, a lawyer who speaks against same-sex marriage may be in violation of the rule for engaging in speech that some consider to be discriminatory based on sexual orientation or marital status, while a lawyer who speaks in favor of same-sex marriage would not be. Or as the Minnesota case discussed above illustrates, one may speak favorably about transgender issues, but not unfavorably. These are classic examples of unconstitutional viewpoint-based speech restrictions. See R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (holding that the government may not regulate speech based on hostility – or favoritism – towards the underlying message expressed). In R.A.V., the Supreme Court struck down, as facially unconstitutional, the city of St. Paul’s Bias-Motivated Crime Ordinance because it applied only to fighting words that insulted or provoked violence “on the basis of race, color, creed, religion or gender,” whereas expressed hostility on the basis of other bases were not covered. Id. In striking down the Ordinance, the Court stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at 390. That is precisely what the proposed Rule does. For that reason, commentators have described Model Rule 8.4(g) as a speech codes for lawyers.
    For those who would deny that the proposed amendments create an attorney speech code, we need only point them to Indiana, a state that has adopted a black letter non-discrimination rule. In In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Ind. 2010), an Indiana attorney was professionally disciplined under Indiana’s Rule 8.4(g) for merely asking someone if they were “gay.” And in In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Ind. 2010), an attorney had his license suspended for applying a racially derogatory term to himself. In both cases, the attorneys were professionally disciplined merely for using certain disfavored speech.
    Because it constitutes an unconstitutional speech code for lawyers, the proposed amendments should be rejected.

     
  27. Thaddeus W. Wendt

    (Part 3 of 3)

    The Proposed Amendments Will Violate Attorneys’ Free Exercise of Religion and Free Association Rights.
    The proposed amendments will also violate attorneys’ constitutional right of free religious exercise because the amendments prohibit religious expression if such expression could be considered hostile, demeaning, humiliating, or discriminatory.
    The ACLU of New Hampshire opposed a similar rule – considered but not adopted – in that state, noting correctly that such rules threaten religious liberty because “one person’s religious tenet could be another person’s manifestation of bias.” American Civil Liberties Union of New Hampshire, Letter to Advisory Committee on Rules, New Hampshire Supreme Court (May 31, 2018).
    So, for example, the proposed amendments would prohibit attorneys from engaging in “bigotry” and “prejudice.” But “bigotry” means a “stubborn and complete intolerance of any creed, belief, or opinion that differs from one’s own.” http://www.dictionary.com/browse/bigotry.# (last visited 7/9/2020) and “prejudice” means “unreasonable feelings, opinions, or attitudes, especially of a hostile nature, regarding an ethnic, social, or religious group.” http:/www.dictionary.com/browse/prejudice# (last visited 7/9/2020). But lawyers of faith may very well have religiously informed beliefs that, to others, might appear intolerant or hostile. The proposed amendments would professionally condemn such beliefs.
    As an illustration of this, the late Professor Rotunda posited the example of Catholic attorneys who are members of the St. Thomas More Society, an organization of Catholic lawyers and judges. If the St. Thomas More Society should host a CLE program in which members discuss and, based on Catholic teaching, voice objection to the Supreme Court’s same-sex marriage rulings, Professor Rotunda explained that those attorneys may be in violation of the rule because they have engaged in conduct related to the practice of law that could be considered discrimination based on sexual orientation. In fact, Professor Rotunda pointed out that an attorney might be in violation of the rule merely for being a member of such an organization. Rotunda, supra at 4-5. The fact that the proposed amendments may prohibit such speech or membership indicates that the proposed amendments will be unconstitutional.
    To those who might deny the proposed amendments could or would be applied in that way, one need only note the above-referenced action of the CLE accrediting authorities in Minnesota upon the Minnesota Lavender Bar Association’s complaint that a CLE co-sponsored by a Roman Catholic law school, discussing transgender issues from a Roman Catholic perspective, constituted “harassment” under ABA Model Rule 8.4(g), stating that the religiously based discussion constituted “transphobic rhetoric” and “discrimination.” In essence, that case stands for the proposition that the prohibition of “harassment” and “discrimination” as embodied in professional conduct rules, such as the one proposed here in Utah, will apply to and prohibit religious speech – speech that expresses a religious tenet of some, but to others is viewed as discrimination or harassment.
    Religiously based legal organizations have consistently opposed professional conduct rules like the one being considered here in Utah on the ground that such rules threaten religious liberty. Those groups include the Catholic Bar Association – which has adopted a resolution stating that Model Rule 8.4(g) is not only unconstitutional, but that it is “incompatible with Catholic teaching and the obligations of Catholic lawyers” – as well as the Christian Legal Society. Both organizations have cause for concern because, as Professor Rotunda presciently warned, merely being members of those organizations would violate rules like the amendments being proposed here. How so? Because both organizations could be considered “law related activities” and both limit their membership based on religion. The Christian Legal Society requires its members to subscribe to a Christian statement of faith. The Catholic Bar Association requires its members to be practicing Roman Catholics. Therefore, both legal organizations “discriminate” on the basis of religion in a law-related activity– something explicitly prohibited under the terms of the proposed amendments. The proposed amendments would, essentially, destroy both organizations.
    Because the proposed amendments will violate attorneys’ Free Exercise (and Free Association) rights, they should be rejected.

    7. The Proposed Amendments Will Result In The Suppression of Politically Incorrect Speech While Protecting Politically Correct Speech.
    Under a literal reading of the proposed amendments, a law firm’s race or sex-based affirmative action hiring practices would constitute a violation because the proposed Rule 8.4(h) makes clear that it is professional misconduct for a lawyer in any law related activity to discriminate on the basis of race or sex. Therefore, any hiring or other employment practices that favor applicants or employees on the basis of either of those characteristics are forbidden.
    But does anyone really believe that a lawyer will ever be prosecuted for favoring women or racial minorities in hiring or promotion decisions, undertaken in order to increase diversity in the legal profession? Of course not. In fact, discrimination for those purposes will actually be favored.
    Indeed, the proposed Comment [4] to the proposed Rule 8.4(g) makes this practice, of protecting favored speech and suppressing disfavored speech, explicit because Comment [4] to the Rule contains an express exception for implementing initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, providing that such are not violations of paragraph (g).
    So, if an attorney engages in discriminatory conduct that furthers a politically correct interest, the disciplinary authority will find that the discrimination is undertaken to promote diversity or inclusion, or to serve an underserved population – and for that reason does not violate the Rule. But if an attorney engages in discriminatory conduct that furthers a politically incorrect interest, the state will prosecute that attorney for violating the Rule. And because the terms “hostile, demeaning, humiliating, or discriminatory” are vague and overbroad, professional disciplinary authorities will be able to interpret those terms in ways that result in selective prosecution of politically incorrect or disfavored speech, while protecting politically correct or favored speech.
    This phenomenon has already been observed in other similar contexts. For example, a Civil Rights Commission in Colorado prosecuted a Christian baker for declining to bake a wedding cake for a same-sex couple, but refused to prosecute three other bakers who refused to bake a cake for a Christian, finding that the first constituted illegal discrimination but that the second did not. The reason underlying this disparate treatment was obvious – in the first the complaining party was a member of a politically favored class, while in the second the complaining party was a member of a disfavored one. The U.S. Supreme Court condemned that unequal treatment, stating that it constituted a “clear and impermissible hostility toward the religious beliefs” of the baker the Commission selectively chose to prosecute. Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018).
    These exceptions also render the proposed amendments unconstitutional because – by prohibiting only disfavored discriminatory messages, while allowing favored ones – the proposed amendments create a viewpoint-based speech restriction. See R.A.V., 505 U.S. 377.
    No rule of professional conduct should punish certain viewpoints while protecting and advancing others. In fact, to do so would be unconstitutional.

    8. Assurances That the Proposed Amendments Will Not Be Applied in an Unconstitutional Manner Does Not Cure the Amendments’ Constitutional Infirmities.
    Proposed Comment [5] to Rule 8.04 provides that: Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution. This provision was apparently added in order to address the concern that, although the proposed amendments could be applied in an unconstitutional manner, they will not be – and to assuage attorneys’ concerns about the proposed amendments’ constitutional infirmities. However, such a “savings clause” is ineffective to cure the proposed amendments’ constitutional infirmities.
    First, proponents of the proposed amendments do not have the authority to speak on behalf of a state’s professional disciplinary authorities. Proponents of the amendments cannot say how the disciplinary authorities will or will not interpret or apply the proposed amendments.
    And second, this very argument was made and rejected in Stevens, supra. There, in a case challenging the constitutionality of a statute criminalizing certain depictions of animal cruelty, the U.S. Supreme Court addressed the government’s claim that the statute was not unconstitutionally overbroad because the government would interpret the statute in a restricted manner so as to reach only “extreme” acts of animal cruelty, and that the government would not bring an action under the statute for anything less. In response, the high court pointed out that “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” The court pointed out the danger in putting faith in government representations of prosecutorial restraint, and stated that “The Government’s assurance that it will apply § 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” Id. at 480.
    In other words, far from curing its constitutional defects, representations such as that provided in the proposed Comment [5] of the proposed amendments – that the amendments will not be applied so as to violate the Constitution – constitute indirect admissions that the proposed amendments are, in fact, constitutionally infirm.
    In arguing that the proposed Rule will not be applied unconstitutionally, proponents may also point to the Rule’s provision that “Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). But that provision does not cure the defects either.
    It does not cure the defects, first, because the cited provision is circular. In order to qualify as “legitimate” the advice or advocacy must, of course, be consistent with the Rules. But in order to be consistent with the Rules (in particular with proposed Rule 8.4(h) itself, incorporating the Rules of Professionalism and Civility), the advice or advocacy cannot be “hostile, demeaning, humiliating, or discriminatory.” In other words, under the proposed Rule, advice or advocacy that could be considered to constitute hostile, demeaning, humiliating, or discriminatory speech or conduct can, by definition, never constitute legitimate advocacy because hostile, demeaning, humiliating, or discriminatory advice or advocacy is inconsistent with proposed Rule 8.4(h) itself.
    Further, by stating that the Rule will not prohibit “legitimate advocacy” the proposed Rule – for the first time – creates the concept of illegitimate advocacy. Advocating for clients is the very essence of what lawyers do. If the proposed Rule is adopted, however, an attorney will need to worry whether her advocacy might be considered “illegitimate” and, therefore, a violation of professional ethics. And having to worry about that will chill the lawyer’s speech and interfere with the attorney’s ability to provide her client with zealous representation.
    Finally, who will determine whether an attorney’s advocacy is legitimate or illegitimate? The disciplinary authorities, of course, will make that determination, in their unfettered discretion, after the fact and, potentially, on political or ideological grounds.

    C. The Proposed Amendments Will Invade The Historically Recognized Right And Duty Of Attorneys To Exercise Professional Autonomy In Choosing Whether To Engage In Legal Representation.
    If the proposed amendments are adopted, attorneys will be subject to discipline for acting in accordance with their professional and moral judgment when making decisions about whether to accept, reject, or withdraw from certain cases – because, under the proposed amendments, attorneys will not only be forced to take cases or clients they might have otherwise declined, they will be forced to take cases or clients the Rules of Professional Conduct forbid them to take.
    1. Proposed Rule 8.4(h) Provides No Exception For Attorney Client Selection Decisions
    In countering this contention, proponents of the amendments will undoubtedly point to Comment [4] of the proposed amendments, which provides that: “[4] Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation.” However, this provision applies, on its face, only to proposed Rule 8.4(g) – not proposed Rule 8.4(h) – and proposed Rule 8.4(g) applies only to “unlawful, discriminatory or retaliatory employment practice[s] under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act” (our emphasis). But neither of those statues would even apply to an attorney’s client selection decisions because the relationship between a lawyer and his or her clients does not constitute an employment relationship under either statute.
    Proposed Rule 8.4(h), on the other hand, prohibits conduct that violates Rule 14-301 of the Standards of Professionalism and Civility, which prohibits lawyers from engaging in any “discriminatory conduct in law-related activities.” And, unlike proposed Rule 8.4(g), the proposed amendments contain nothing that exempts a lawyer’s client selection decisions from Rule 8.4(h)’s prohibitions. Therefore, since a lawyer’s client selection decisions are clearly a law-related activity, the proposed amendments must prohibit lawyers from engaging in “discriminatory conduct” in exercising their client selection decisions.
    And we know that limiting the client selection decision exemption to proposed Rule 8.4(g) and not extending it to proposed Rule 8.4(h) is not just an oversight, because the drafters of the proposed amendment knew how to make provisions applicable to both 8.4(g) and (h) if they wanted. So, for example, the proposed amendments specifically provide that: “Comment [5]. Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution” (our emphasis).
    So, in short, contrary to the assertions of the Rule’s proponents, the proposed Rule will apply to an attorney’s client selection decisions and will prohibit attorneys from declining representation of particular clients if to do so could be considered discriminatory.
    2. The Proposed Amendments Constitute An Alarming Departure From the Historically and Professionally Recognized Right of Attorneys to Select Their Own Clients.
    This is an alarming departure from the professional principles historically enshrined in Utah’s Rules of Professional Conduct and its predecessors, which have, before now, always respected the attorney’s freedom and professional autonomy when it comes to choosing who to represent and what cases to accept.
    Although the Rules have placed restrictions on which clients attorneys may not represent (see, for example, Rule 1.7 which precludes attorneys from representing clients or cases in which the attorney has a conflict of interest, and Rule 1.16(a) which requires attorneys to decline or withdraw from representation when representation would compromise the interests of the client), never before have the Rules required attorneys to take cases the attorney decides – for whatever reason – he or she does not want to take, or to represent clients the attorney decides – for whatever reason – he or she does not want to represent. (Although Rule 6.2 prohibits attorneys from seeking to avoid court appointed representation, that Rule does not apply to an attorney’s day-to-day voluntary client selection decisions – and even in its peculiar context of court-appointed representation the Rule expressly allows attorneys to decline such appointments “for good cause” – including because the attorney finds the client or the client’s cause repugnant.)
    Indeed, up until now, the principle that attorneys were free to accept or decline clients or cases at will, for any or no reason, prevailed universally. See, for example, Modern Legal Ethics, Charles W. Wolfram, p. 573 (1986)(“a lawyer may refuse to represent a client for any reason at all – because the client cannot pay the lawyer’s demanded fee; because the client is not of the lawyer’s race or socioeconomic status; because the client is weird or not, tall or short, thin or fat, moral or immoral.”). The reasons underlying this historically longstanding respect for attorneys’ professional autonomy in making client and case selection decisions are clear.
    First, the Rules themselves respect an attorney’s personal ethics and moral conscience. For example, section [7] of the Preamble to Utah’s Rules provides that “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience” and section [9] of the Preamble provides that “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person . . . Such issues must be resolved through the exercise of sensitive professional and moral judgment . . .”
    If a lawyer is required to accept a client or a case to which the attorney has a moral objection, however, the Rules would have the effect of forcing the attorney to violate his or her personal conscience, would interfere with the lawyer’s interest in remaining an ethical person, and would prohibit lawyers from exercising their own moral judgment.
    And second, the Rules impose upon attorneys a professional obligation to represent their clients zealously (Comment [1] to Rule 1.3) and without personal conflicts (Rule 1.7(a)(2)). A lawyer’s ability to conform to those duties, however, would be compromised should the lawyer have personal or moral objections to a client or a client’s case.
    To force an attorney to accept a client or case the attorney does not want, and to then require the attorney to provide zealous representation to that client, is unfair to the attorney because doing so places conflicting and unresolvable obligations upon the lawyer. But it will also harm clients because every client deserves an attorney who is not subject to or influenced by any interests which may, directly or indirectly, adversely affect the lawyer’s ability to zealously, impartially, and devotedly represent the client’s best interests.
    We must always remember that a primary purpose of the Rules is to protect the public, by ensuring that attorneys represent their clients competently and without personal interests that will adversely affect the attorney’s ability to provide clients with undivided and zealous representation. It recognizes the principle that the client’s best interest is never to have an attorney who – for any reason – cannot zealously represent them or who has a personal conflict of interest with the client.
    The proposed amendments to the Rules, however, will force an attorney to represent clients who the attorney cannot represent zealously or who, on account of the attorney’s personal beliefs about the client or the case, will not be able to represent without a personal conflict of interest. In that respect, the proposed amendments will harm clients.
    Indeed, the proposed amendments, if adopted, would introduce insidious deception into the attorney-client relationship because – in order to avoid violating the Rule – some attorneys will be led to conceal their personal animosities from clients, thereby saddling clients with attorneys who – if the client knew of the attorney’s animosities – the client would not retain.
    For these reasons, too, the proposed amendments should be rejected.
    3. The Proposed Amendments Conflict with Other Professional Obligations and Rules of Professional Conduct.
    Another significant problem with the proposed amendments is that they conflict with other professional obligations and Rules of Professional Conduct. For example:
    a. The Proposed Amendments Conflict with Rule 1.7 (Conflicts of Interest). Rule 1.7 provides that: “(a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer” (our emphasis). And Restatement (Third) of the Law Governing Lawyers §125 (2000) clarifies that: “A conflict under this Section need not be created by a financial interest. . . Such a conflict may also result from a lawyer’s deeply held religious, philosophical, political, or public-policy belief” (our emphasis).
    So – on the one hand the proposed Rule requires an attorney to accept clients and cases, despite the fact that such clients or cases might run counter to the attorney’s deeply held religious, philosophical, political, or public policy principles, while at the same time Rule 1.7 provides that accepting a client or a case – when the client or case runs counter to such beliefs of the attorney – would violate Rule 1.7’s Conflict of Interest prohibitions.
    b. The Proposed Amendments Conflict With Rule 1.3. (Zealous Representation). Attorneys have a professional duty to represent their clients zealously. Indeed, the U.S. Supreme Court has stated that lawyers have a fundamental duty to zealously represent their clients. Evans v. Jeff D., 475 U.S. 717, 758 (1986). See also Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)(stating that “a lawyer’s first duty is zealously to represent his or her client”). So, this is a fundamental professional duty, independent of the Rules of Professional Conduct. But Rule 1.3 of the Utah Rules of Professional Conduct also establishes such a duty. The Comment to Rule 1.3 (Diligence) states that “A lawyer must . . . act . . .with zeal in advocacy upon the client’s behalf.”
    “Zeal” means “a strong feeling of interest and enthusiasm that makes someone very eager or determined to do something.” Merriam-Webster.com/dictionary/zeal. Synonyms are “passion” and “fervor”.
    But how would an attorney be able to zealously represent a client whose case runs counter to the attorney’s deeply held religious, political, philosophical, or public policy beliefs?
    Under proposed Rule 8.4(h), the attorney may not be allowed to reject a case or client she might otherwise reject – due to the attorney’s personal beliefs – but then must also represent that client with passion and fervor, enthusiastically and in an eager and determined manner.
    Is that humanly possible? We would submit that it is not. And we contend that that is exactly why the Rules provide that, if a lawyer cannot do that – for whatever reason – even a discriminatory one – they must not take the case.
    How is that conflict to be resolved?
    c. The Proposed Amendments Conflict with Rule 6.2 (Accepting Appointments). – Rule 6.2 provides that “A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause: such as: . . . (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client” (our emphasis).
    Although this Rule is technically applicable only to court appointments, it is important to what we are discussing here because it contains a principle that should be equally – if not more – applicable to an attorney’s voluntary client-selection decisions. Namely, the Rule recognizes that a client or cause may be so repugnant to a lawyer that the lawyer-client relationship would be impaired or the lawyer’s ability to represent the client be adversely affected.
    Indeed, the Comment to Rule 6.2 sets forth the general principle that “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”
    And yet, the proposed amendments would require an attorney to represent clients and cases the lawyer may find repugnant.
    d. The Proposed Amendments Conflict with Rule 1.16 (Declining or Terminating Representation). Rule 1.16(a)(1) provides that: (a) . . . a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in the violation of the Iowa Rules of Professional Conduct or other law. However, we have already seen that Rule 1.7 would prohibit an attorney from representing a client who – due to the lawyer’s personal beliefs – the lawyer could not represent without a personal conflict of interest interfering with that representation; and Rule 1.3 would prohibit an attorney from representing a client if the attorney could not do so zealously; and Rule 6.2 provides that a lawyer may decline court appointed representation if the attorney finds the client or the client’s cause so repugnant as to interfere with the ability of the lawyer to provide un-conflicted representation. To represent clients in any of these situations would constitute a violation of the Rules of Professional Conduct. But the proposed amendments will require attorneys to accept clients and cases that – due to the attorney’s personal beliefs about the client or the case – the attorney would otherwise have to decline. So, the proposed amendments is in conflict with Rule 1.16 too.
    In the event of an inevitable conflict, which Rule is going to prevail?
    Indeed, the fact that the proposed amendments conflict with other Professional Rules reveals a foundational problem with the proposed amendments – and that is that the proposed amendments are an attempt to impose upon the legal profession a non-discrimination construct that is, in its basic premises, inconsistent with who attorneys are and what they professionally do. It is an attempt to force a round peg into a square hole.
    In considering the proposed amendments, we must remember that the non-discrimination template on which the proposed amendments are based is taken from the context of public accommodation laws – non-discrimination laws that are imposed in the context of merchants and customers. But lawyers are not mere merchants, and a lawyer’s clients are not mere customers. Unlike merchants and customers, attorneys have fiduciary relationships with their clients.
    Attorneys are made privy to the most confidential of their client’s information, and are bound to protect those confidentialities; they are bound to take no action that would harm their clients; and attorneys’ relationships with their clients oftentimes last months or even years. And once an attorney is in an attorney-client relationship, the attorney oftentimes may not unilaterally sever that relationship. None of those things are true with respect to a merchant’s relationship with a customer. So it is one thing to say a merchant may not pick and choose his customers. It is entirely another to say a lawyer may not pick and choose her clients.
    No lawyer should be required to enter into what is, by definition, a fiduciary relationship with a client the attorney does not want – for whatever reason – to represent.

    D. The Proposed Rule is Unnecessary and Will Unnecessarily Burden Utah’s Professional Disciplinary Authorities.
    Many of the circumstances the proposed Rule would address are already addressed by the current Rules of Professional Conduct or other laws.
    First, proposed Rule 8.4(h) prohibits conduct that prejudices the administration of justice. And proposed Comment [3] provides that A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race; color; sex; pregnancy, child birth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion, national origin; disability; sexual orientation; gender identity; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice (our emphasis).
    But Rule 8.4(d) already prohibits attorney conduct that prejudices the administration of justice. And, in fact, sexual harassment has been professionally disciplined in other states under Rule 8.4(d). See, e.g., Attorney Grievance Comm’n of Md. v. Goldsborough, 624 A.2d 503 (Ct. App. Maryland 1993) (holding that nonconsensual kissing of clients and spanking clients and employees can violate Rule 8.4(d) prohibiting lawyer from engaging in conduct that is prejudicial to the administration of justice). Likewise, harassing and discriminatory judicial behavior – as well as discriminatory and harassing conduct of attorneys in proceedings before judicial tribunals – are already addressed in the Utah Code of Judicial Conduct, Rule 2.3(B) and (C).
    For all these reasons, the proposed amendments are redundant and unnecessary.
    In addition, harassment and discrimination in the legal workplace – which proposed Rule 8.4(g) would address – are also already addressed in Title VII at the federal level, as well as in Utah’s employment nondiscrimination laws, including §34A-5-106 of the Utah Antidiscrimination Act.
    Also the Rule will burden professional disciplinary authorities with having to process very fact-intensive, jurisprudentially complicated, and duplicative cases – cases that could and should be processed under some other statute or ordinance, by judicial authorities better equipped to handle them.
    Further, proposed Rule 8.4(g) makes employment discrimination and harassment a professional, as well as a statutory, offense, divorced from antidiscrimination and harassment laws because, under proposed Rule 8.4(g), “Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g).” This could very well subject attorneys to multiple prosecutions and inconsistent obligations and results. Lawyers could be forced to defend against parallel prosecutions, being pursued by different prosecutorial authorities, all at the same time. And, because different legal and evidentiary standards may apply in different proceedings, attorneys could – under the same set of facts – be exonerated from allegations of having violated an employment nondiscrimination or harassment law, but still be found to have engaged in harassing or discriminatory conduct that violates the Rules of Professional Conduct, or vice versa. Some states have recognized the importance of this issue by requiring that any claim against an attorney for unlawful discrimination be brought for adjudication before a tribunal other than a disciplinary tribunal before being brought before a disciplinary tribunal. See, for example, Illinois Rules of Professional Conduct Rule 8.4(j) and New York Rules of Professional Conduct Rule 8.4(g).
    So for all these reasons, too, the proposed amendments should be rejected.

    III. Conclusion

    The proposed amendments are unconstitutional. They are unconstitutionally vague. They are unconstitutionally overbroad. And they constitute an unconstitutional content-based speech restriction. They also violate attorneys’ Free Speech, Free Exercise, and Free Association rights.
    In addition to being constitutionally infirm, the proposed amendments would sever Utah’s Rules of Professional Conduct from the legitimate interests of the bar in regulating the legal profession, conflict with other Rules of Professional Conduct and professional obligations attorneys have, and would authorize professional disciplinary authorities to discipline lawyers for non-commercial speech and conduct that neither prejudices the administration of justice nor renders attorneys unfit to practice law. The proposed amendments would also subject attorneys to duplicative prosecutions, as well as inconsistent obligations and results. And they would harm clients.
    For all these reasons, the proposed amendments to Rule 8.04 of the Utah Rules of Professional Conduct and Rule 14-301 of the Standards of Professionalism and Civility should be rejected.

    Respectfully submitted,
    Danny C. Leavitt #15185
    Frank D. Mylar #5116
    Thaddeus W. Wendt #11977

     
  28. Thaddeus W. Wendt

    IN THE UTAH SUPREME COURT

    Request for Public Comment on ) Joint Comment in Opposition to
    Proposed Amendments to Rule ) Proposed Amendments to Rule
    8.04 Rules of Professional Conduct ) 8.04 Rules of Professional Conduct
    and Rule 14-301 of the Standards of ) and Rule 14-301 of the Standards
    Professionalism and Civility ) Professionalism and Civility

    The Utah licensed attorneys listed below respectfully submit this Comment on the proposed amendments to Rule 8.04 of the Utah Rules of Professional Conduct and Rule 14-301 of the Standards of Professionalism and Civility.

    I. The Proposed Amendments
    It is being proposed that Rule 8.04 of the Utah Rules of Professional Conduct be amended by amending subsections (g) and (h) to the Rule so as to read as follows:
    It is professional misconduct for a lawyer to:

    (g) engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act, except that for the purposes of this paragraph and in applying those statutes, “employer” shall mean any person or entity that employs one or more persons; or

    (h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.

    The proposed amendments would also amend the Comments to Rule 8.04 as follows:

    [3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race; color; sex; pregnancy, child birth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion, national origin; disability; sexual orientation; gender identity; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice. The protected classes listed in this paragraph are consistent with those enumerated in the Utah Antidiscrimination Act of 1965, Utah Code Sec. 34A-5-106(1)(a) (2016), and in federal statutes and is not intended to be an exhaustive list as the statutes may be amended from time to time. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s findings that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

    [4] The substantive law of antidiscrimination and anti-harassment statutes and case law governs the application of paragraph (g), except that for purposes of determining a violation of paragraph (g), the size of a law firm or number of employees is not a defense. Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation, nor does paragraph (g) preclude legitimate advice or advocacy consistent with these rules. Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g). Lawyers may discuss the benefits and challenges of diversity and inclusion without violating paragraph (g). Unless otherwise prohibited by law, implementing or declining to implement initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, are not violations of paragraph (g).

    [5] Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution.

    [6] A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers should also be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay and their obligations under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by a lawyer of the client’s views or activities. See Rule 1.2(b).

    [9] This rule differs from ABA Model Rule 8.4(g) to the extent that it changes paragraph (g), adds new paragraph (h), and modifies the comments accordingly.

    Further, the proposed amendments would amend Rule 14-301 of the Standards of Professionalism and Civility as follows:

    Preamble . . . Finally, the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers.

    3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Neither written submissions or oral presentations shall disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law.

    Lawyers shall avoid hostile, demeaning, humiliating, or discriminatory conduct in law-related activities. Discriminatory conduct includes all discrimination against protected classes as those classes are enumerated in the Utah Antidiscrimination Act of 1965, Utah Code sec. 34A-5-106(1)(a), and federal statutes, as amended from time to time.

    Comment. Lawyers should refrain from expressing scorn, superiority, or disrespect. [Unconstitutional] Legal process should not be issued merely to annoy, humiliate, intimidate, or harass. Special care should be taken to protect witnesses, especially those who are disabled or under the age of 18, from harassment or undue contention. Lawyers should refrain from acting upon or manifesting bigotry, discrimination, or prejudice toward any person in the legal process, even if a client requests it.

    Law-related activities include, but are not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.

    II. Comments

    A. The Proposed Amendments, for the First Time, Incorporate The Amended Standards of Professionalism and Civility Into the Rules of Professional Conduct.
    In order to fully appreciate the magnitude of the changes the proposed amendments would effect, one must note that, under the proposed amendments, violations of Utah’s Standards of Professionalism and Civility would, for the first time, constitute violations of the Rules of Professional Conduct. This is clear from two provisions of the proposed amendments.
    The first pertinent provision of the proposed amendments is proposed Rule of Professional Conduct 8.04(h), which provides that It is professional misconduct for a lawyer to:(h) egregiously violate, or engage in a pattern of repeated violations, of Rule 14-301 [of the Standards of Professionalism and Civility] if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice. Thus, the proposed amendments directly incorporate Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h) of the Rules of Professional Conduct.
    The other relevant provision is the proposed amendment to the Preamble of the Standards of Professionalism and Civility, which provides that: the term “standard” has historically pointed to the aspirational nature of this rule. But Rule 8.4(h) now makes the provisions of this rule mandatory for all lawyers (our emphasis).
    In other words, the proposed amendment to Rule of Professional Conduct 8.04(h) expressly incorporates Rule 14-301 of the Standards of Professionalism and Civility into Rule 8.04(h), and the proposed amendments to the Standards of Professionalism and Civility expressly recognize that the Standards are being made a mandatory rule for lawyers under proposed Rule 8.04(h).
    This is an important point because, by incorporating the proposed amendments to the Standards of Professionalism and Civility into the proposed amendments to the Rules of Professional Conduct, the advocates of the proposed amendments have proposed what appears to be a small and limited change to the face of the Rules of Professional Conduct – but have then greatly expanded that apparently small change by incorporating into the new Rule a much more expansive set of rules that share many of the constitutional and other infirmities of ABA Model Rule 8.4(g).
    Hence, in analyzing the effect of the proposed amendments, one must analyze together the proposed amendments to Rule 8.04 of the Rules of Professional Conduct and the proposed amendments to Rule 14-301 of the Standards of Professionalism and Civility, because the proposed amendments render them one and the same.
    For that reason, our comment on the proposed amendments to the Rules of Professional Conduct and the proposed amendments to the Standards of Professionalism and Civility will be considered together, as they must.

    B. The Proposed Amendments Are Unconstitutional.
    1. Attorney Speech is Constitutionally Protected.
    Citizens do not surrender their First Amendment speech rights when they become attorneys, including when they are acting in their professional capacities as lawyers. NAACP v. Button, 371 U.S. 415 (1963) (holding that “a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”); see also Ramsey v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 771 S.W.2d 116, 121 (Tenn. 1989) (holding that an attorney’s statements that were disrespectful and in bad taste were nevertheless protected speech and use of professional disciplinary rules to sanction the attorney would constitute a significant impairment of the attorney’s First Amendment rights, and stating that “we must ensure that lawyer discipline, as found in Rule 8 of the Rules of this Court, does not create a chilling effect on First Amendment rights.”); Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1444 (9th Cir. 1995) (stating that the substantive evil must be extremely serious and the degree of imminence must be extremely high before an attorney’s utterances can be punished under the First Amendment).
    Indeed, the ABA itself has acknowledged this very principle in an amicus brief it filed in the case of Wollschlaeger. v. Governor of the State of Fla., 797 F.3d 859 (11th Cir. 2015). In its brief the ABA denied that a law regulating speech should receive less scrutiny merely because it regulates “professional speech.” “On the contrary” – the ABA stated – “much speech by . . . a lawyer . . . falls at the core of the First Amendment. The government should not, under the guise of regulating the profession, be permitted to silence a perceived ‘political agenda’ of which it disapproves. That is the central evil against which the First Amendment is designed to protect.” “Simply put” – the ABA stated – “states should not be permitted to suppress ideas of which they disapprove simply because those ideas are expressed by licensed professionals in the course of practicing their profession . . . Indeed,” – the ABA stated – “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression, and has repeatedly admonished that no new such classifications be created.”
    The ABA is, of course, correct in stating that “the Supreme Court has never recognized ‘professional speech’ as a category of lesser protected expression.” Indeed, the U.S. Supreme Court recently reiterated this principle in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), 2018 WL 3116336, in which it devoted a part of its opinion to the subject of professional speech, stating: “[T]his Court’s precedents have long protected the First Amendment rights of professionals. For example, this Court has applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, . . .The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information” (internal citations omitted). 138 S. Ct. 2361, 2374. The Court concluded that it was not presented with any persuasive reason for treating professional speech as a unique category of speech that is exempt from ordinary First Amendment principles.
    In short, attorneys do not surrender their constitutional rights when they enter the legal profession – including with respect to their professional speech – and the state may not violate attorneys’ constitutional rights under the guise of professional regulation.
    2. The Proposed Amendments Prohibit Constitutionally Protected Speech.
    Some proponents of the proposed amendments might contend that the amendments prohibit only conduct, not speech, and that any speech that is prohibited is speech that is merely incidental to the prohibited conduct. For that reason – they might claim – the amendments do not violate the First Amendment free speech rights of lawyers.
    But that is incorrect. The proposed amendments – particularly the proposed amendments to the Rules of Civility and Professionalism, which are, by incorporation, explicitly made a part of proposed Rule 8.04(h) – prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities;.” from making “written submissions or oral presentations [] [that] disparage the integrity, intelligence, morals, ethics, or personal behavior of any person unless such matters are directly relevant under controlling substantive law;” from “expressing scorn, superiority, or disrespect;” and from “manifesting bigotry, discrimination, or prejudice toward any person in the legal process.” All these provisions prohibit pure speech.
    For that reason, the proposed amendments do not prohibit conduct that incidentally involves speech. Instead, the amendments prohibit speech that incidentally involves professional conduct. See Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harvard J. Law & Pub. Policy 173, 247 (2019).
    A relatively recent event in Minnesota illustrates the point. In May of 2018 the Minnesota Lavender Bar Association (“MLBA”) – “a voluntary professional association of lesbian, gay, bisexual, transgender, gender queer, and allies, promoting fairness and equality for the LGBT community within the legal industry and for the Minnesota community” – objected to an accredited Continuing Legal Education presentation entitled “Understanding and Responding to the Transgender Moment/St. Paul,” which was co-sponsored by a Roman Catholic law school and addressed transgender issues from a Roman Catholic perspective. The MLBA complained that the CLE – which was pure speech – was “discriminatory and transphobic,” “encourages bias by arguing against the identities [of transgender people],” was contrary to the bar’s diversity efforts, and constituted “harassing behavior” under Rule 8.4(g) of the Model Rules of Professional Conduct. The MLBA further characterized the presentation as “transphobic rhetoric” and stated that “Discrimination is not legal education.” Minn. Lavender Bar Ass’n, https://gumroad.com/mlba (last visited Apr. 2, 2019). As a result of the MLBA’s complaint, the CLE accrediting body of the Minnesota Bar revoked its CLE accreditation of the presentation – reportedly the first time such retroactive revocation of CLE credit had ever occurred in Minnesota. See Barbara L. Jones, CLE credit revoked, Minnesota Lawyer (May 28, 2018).
    In this real-life example, the complained of behavior consisted of pure speech, was alleged to constitute harassment and discrimination – and was punished by the state. And the same result could occur under the amendments proposed here, because the amendments prohibit speech that could be considered by some as “hostile, demeaning, humiliating, or discriminatory” “in law-related activities,” specifically including CLE’s and other Bar events.
    Thus, it is clear that the proposed amendments do, in fact, prohibit lawyer speech. And, as is discussed below, much of that speech is constitutionally protected. By prohibiting and threatening to punish attorneys for engaging in constitutionally protected speech, the proposed amendments violate attorneys’ free speech rights.

    3. The Proposed Amendments Are Unconstitutionally Vague.
    Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. And the lack of such notice in a law that regulates expression raises special First Amendment concerns because of its obvious chilling effect on free speech. For that reason, courts apply a more stringent vagueness test when a regulation interferes with the right of free speech. Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010).
    Vague laws present several due process problems. First, such laws may trap the innocent by not providing fair warning. Second, vague laws delegate policy matters to state agents for enforcement on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. And third, such laws lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
    (a) The Terms “Hostile, Demeaning, Humiliating, Discriminatory, Disparag[ing], “Expressing Scorn, Superiority, or Disrespect,” or “Manifesting Bigotry, Discrimination, or Prejudice” are all Unconstitutionally Vague.
    The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process.” However, these terms are not defined in the proposed amendments and, therefore, do not give lawyers sufficient guidance as to what behavior is being proscribed.
    For example, the word “hostile” simply means “antagonistic,” “not friendly, warm, or generous,” “not hospitable.” https://www.dictionary.com/browse/hostile# (last visited 7/7/2020). But lawyers commonly engage in speech and conduct that others could consider antagonistic, unfriendly, ungenerous, and inhospitable. Sending a demand letter or threatening to file or filing a lawsuit against someone are themselves inherently antagonistic and unfriendly acts. And lawyers oftentimes engage in behavior that is inherently “antagonistic” or “unfriendly” in depositions, settlement negotiations, and even transactional negotiations. So how is an attorney to know what sorts of speech and conduct are prohibited by the amendments and which are not? Under Title VII, a “hostile” work environment is prohibited, but in the Title VII employment context prohibited hostility does not mean a mere offensive utterance. Faragher v. City of Boca Raton, 524U.S. 775, 777-78(1998). Under the proposed amendments, though, no such limiting definitions are provided to assist lawyers in determining which behaviors violate the amendments and which do not. Therefore, attorneys are left to guess – at their peril – whether their behavior, expressed in an inherently adversarial judicial system, may violate the proposed amendments.
    Similarly, the word “demeaning” simply means “debasing” or “degrading.” http://www.dictionary.com/browse/demeaning# (last visited 7/7/2020). But, again, lawyers – operating in the American adversarial system of justice – commonly engage in speech and conduct that others could consider to be debasing or degrading. So how is an attorney to know what sort of speech and conduct is prohibited by the amendments and which is not?
    The word “humiliating” means “lowering the pride, self-respect, or dignity of a person.” http://www.dictionary.com/browse/humiliating# (last visited 7/7/2020). But, again, lawyers commonly engage in speech and conduct that others would probably consider humiliating. Is it not humiliating to every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sort of speech and conduct is prohibited by the amendments and which is not?
    The term “discriminatory” is also unconstitutionally vague. One might contend that the word “discriminatory” is widely used and easily understood. And it is certainly true that many statutes and ordinances prohibit discrimination, in a variety of contexts. But it is also true that such statutes and ordinances do not – as does the proposed amendments – merely prohibit “discrimination” and leave it at that. Rather, they spell out what specific behavior constitutes discrimination. For example, the federal Fair Housing Act provides a detailed description of what sorts of acts, specifically, are prohibited under the Act in the context of housing. See 42 U.S.C. § 3604. Similarly, Title VII specifies what sorts of acts constitute discrimination under the statute in the context of employment. See 42 U.S.C. § 2000e-2. Although proposed Rule8.4(g), which is limited to the employment context, would address this category of discrimination and theoretically be limited by it, proposed Rule 8.4(h) would not because proposed Rule 8.4(h) applies to attorney speech and conduct generally and outside the employment context. Proposed Rule 8.4(h) simply prohibits “discriminatory conduct in law-related activities.”– thereby leaving to the attorney’s imagination what sorts of speech and behavior might be encompassed in that proscription.
    The word “disparaging” means “to speak of or treat slightingly; depreciate; belittle” or “to bring reproach or discredit upon” or “lower the estimation of.” http://www.dictionary.com/browse/disparage# (last visited 7/7/2020). But, again, is it not disparaging for every defendant to be the subject of allegations that they have engaged in criminal conduct, been negligent, defrauded or defamed someone, breached a promise, abused the discovery process, failed to comply with a court order, or engaged in some other unlawful conduct? So how is an attorney to know which sorts of speech and conduct are prohibited by the amendments and which are not? Would some not consider a lawyer who – at a CLE addressing transgender issues – questions whether men can be women or women be men, to be depreciating or belittling transgender individuals and, therefore, in violation of the proposed amendments?
    To “scorn” means “to treat or regard with contempt or disdain http://www.dictionary.com/browse/scorn# (last visited 7/7/2020) and the word “disrespect” means to be discourteous or rude. http://www.dictionary.com/browse/disrespect# (last visited 7/7/2020). Under the proposed amendments, would an attorney who, at a law firm dinner party, expresses her Roman Catholic religious belief that homosexual behavior is fundamentally disordered, be in violation of the rule, since some would consider such a belief as disrespecting homosexual individuals and regarding them with contempt or disdain?
    (b) The Term “Harm” is Unconstitutionally Vague.
    Proposed Rule 8.4(h) prohibits attorneys from violating Rule 14-301 of the Standards of Professionalism and Civility – which prohibits lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process” – if such violations “harm the lawyer’s client or another lawyer’s client” (our emphasis).
    However, the term “harm” is unconstitutionally vague because attorneys cannot determine with any degree of reasonable certainty what speech and conduct may “harm” the lawyer’s client or another lawyer’s client under the Rule. Indeed, the word “harm” encompasses a wide range of injury, from “physical injury or mental damage” to “hurt” to “moral injury; evil; [and] wrong.” Harm, Dictionary.com, http://www.dictionary.com/browse/harm (last visited July 7, 2020). So “harm” to a client, whether one’s own or another attorney’s, can encompass an almost limitless range of allegedly injurious effects on others. Mental damage, for example, could easily be interpreted to include real, imagined, or even feigned, emotional distress at being exposed to expression someone finds offensive or upsetting. And a whole host of expressions could subjectively considered “morally injurious,” “evil,” or “wrong.”
    Remember that speech does not lose its constitutional protection just because it is “harmful.” See, e.g., Snyder v. Phelps, 562 U.S. 443, 458 (2011) (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995) (stating that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); Texas v. Johnson, 491 U.S. 397, 408-09 (1989) (noting that an interest in protecting bystanders from feeling offended or angry is not sufficient to justify a ban on expression); Boos v. Barry, 485 U.S. 312, 321 (1988) (striking down a ban on picketing near embassies where the purpose was to protect the emotions of those who reacted to the picket signs’ message). See also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (stating that “new categories of unprotected speech may not be added to the list [of unprotected speech – such as obscenity, incitement, and fighting words] by a legislature that concludes certain speech is too harmful to be tolerated”) (emphasis added).
    Indeed, the U.S. Supreme Court has stated that the idea that free speech protection should be subject to a balancing test that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test, is a “startling and dangerous” proposition. Id. at 792; see also United States v. Stevens, 559 U.S. 460, 470 (2010) (holding that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”)
    (c) The Phrase “Law-Related Activities” is Unconstitutionally Vague.
    The proposed amendments prohibit lawyers from engaging in “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities.” And the proposed amendments go on to define “law-related activities” to “include, but [are] not limited to, settlement negotiations; depositions; mediations; court appearances; CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties.
    It hardly need be said, though, that what conduct is “law-related” and what conduct is not, is vague and subject to reasonable dispute.
    The phrase is vague, first, because the term “law-related” need not be related to the practice of law, or even the professional activities of lawyers, at all.
    Considering some hypothetical situations brings the problem into focus. It is clear that the proposed prohibitions would apply to comments made by an attorney while attending a law firm retirement party for a law firm co-worker, because the proposed rule expressly applies to firm parties. But would it also include comments made while the attorneys are walking to their vehicles after the party has ended? Would it apply to comments one attorney makes to another while car-pooling to or from work? Would it include comments an attorney makes while teaching a religious liberty law class at the attorney’s church? Or sitting on his church’s governing board, where he is sometimes asked for his professionally informed opinion on some matter before the board? Or when attending an alumni function at the law school the attorney attended? Or when publishing a letter to the editor of a newspaper when the author is identified therein as a lawyer? Or, for that matter, in any behavior in which the actor is identified as being a lawyer? The answers to these inquiries are far from self-evident.
    And it is not just our opinion that the phrase “law-related activities” is unconstitutionally vague. The Chair of the ABA Policy & Implementation Committee, which is charged with advocating for the Model Rules of Professional Conduct, while serving on an ABA CLE panel discussing Model Rule 8.4(g), was asked what the phrase “related to the practice of law” in Model Rule 8.f(g) meant? In response, he stated “I don’t have an answer for you.” “It is extraordinarily broad.” “I don’t know where it begins or where it ends.” Model Rule 8.4 – Update, Discussion, and Best Practices in a #MeToo World, August 2, 2018. And the phrase “law-related activities” is even broader than “related to the practice of law” because the phrase “law-related activities” is not limited to attorney speech and conduct in “the practice of law.”
    Because a lawyer cannot, with any degree of reasonable certainty, determine what behavior of an attorney is “law-related” and what is not, the proposed amendments are unconstitutionally vague.

    If attorneys face professional discipline for engaging in certain proscribed behavior, they are entitled to know, with reasonable precision, what behavior is being proscribed, and should not be left to speculate what the proscription might encompass. Anything less is a deprivation of due process.
    Because of the vagueness of many of the proposed amendments’ essential terms, the proposed amendments are unconstitutional.

    4. The Proposed Amendments Are Unconstitutionally Overbroad.
    Even if a law is clear and precise – thereby avoiding a vagueness challenge – it may nevertheless be unconstitutionally overbroad if it prohibits constitutionally protected speech.
    Overbroad laws – like vague laws – deter protected activity. The crucial question in determining whether a law is unconstitutionally overbroad is whether the law sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned, 408 U.S. at 114-15.
    Although some of the speech the proposed amendments prohibit might arguably be unprotected – such as speech that actually and seriously prejudices the administration of justice by undermining a specific judicial proceeding, or speech that would actually and clearly render an attorney unfit to practice law – the proposed amendments would also sweep within their prohibitions lawyer speech that is clearly protected by the First Amendment, such as speech that might be considered, at least by some, as constituting “hostile, demeaning, humiliating, or discriminatory” speech, or speech that “disparage[s] the integrity, intelligence, morals, ethics, or personal behavior of any person,” or that “harm[s] the lawyer’s client or another lawyer’s client,” or that “express[es] scorn, superiority, or disrespect,” or that “manifest[s] bigotry, discrimination, or prejudice toward any person in the legal process,” but that would not prejudice the administration of justice nor render the attorney unfit to practice law. DeJohn v. Temple Univ., 537 F.3d 301 (2008) (holding that a University Policy on Sexual Harassment that prohibited “all forms of sexual harassment . . . including expressive, visual, or physical conduct of a sexual or gender-motivated nature, when . . . (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment” was unconstitutionally overbroad on its face).
    Speech is not unprotected merely because it is harmful, derogatory, demeaning, or even discriminatory or harassing. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001) (holding that there is no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs; harassing or discriminatory speech implicate First Amendment protections; there is no categorical rule divesting “harassing” speech of First Amendment protection).
    Indeed, offensive, disagreeable, and even hurtful speech is exactly the sort of speech the First Amendment protects. Snyder, 562 U.S. at 458 (holding that the government cannot restrict speech simply because the speech is upsetting or arouses contempt); Hurley, 515 U.S. at 574 (noting that the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful); see also Johnson, 491 U.S. at 414 (stating that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); see also Matal v. Tam, 137 Sup. Ct. 1744 (2017) (stating that the government’s attempt to prevent speech expressing ideas that offend strikes at the heart of the First Amendment) and Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019)(observing that “regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be”).
    In fact, courts have specifically found that terms such as “derogatory” and “demeaning” are unconstitutionally overbroad. Hinton, 633 F.Supp. 1023 (holding that the term “derogatory information” is unconstitutionally overbroad); Summit Bank, 206 Cal. App. 4th 669 (finding that a statute defining the offense of making or transmitting an untrue “derogatory” statement about a bank is unconstitutionally overbroad because it brushes constitutionally protected speech within its reach and thereby creates an unnecessary risk of chilling free speech); see also Saxe, 240 F.3d 200 (holding that a school anti-harassment policy that banned any unwelcome verbal conduct which offends an individual because of actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics is facially unconstitutional because it is overbroad).
    The broad reach of the proposed amendments are well illustrated by the fact that the amendments specifically extend their reach to “firm parties.” This broad reach is the same problem presented by ABA Model Rule 8.4(g). Senior Ethics Counsel Lisa Panahi and Ethics Counsel Ann Ching of the Arizona State Bar, in their January 2017 article “Rooting Out Bias in the Legal Profession: The Path to ABA Model Rule 8.4(g),” in the Arizona Attorney, stated that an attorney could be professionally disciplined under Model Rule 8.4(g)’s prohibition on discriminatory or harassing conduct in business or social activities “related to the practice of law” for telling an offensive joke at a law firm dinner party. The late Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, Ronald Rotunda, provided another example of the broad reach of broad professional rules like the one being proposed here. Writing of ABA Model Rule 8.4(g), he stated: “If one lawyer tells another, at the water cooler or a bar association meeting on tax reform, ‘I abhor the idle rich. We should raise capital gains taxes,’ he has just violated the ABA rule by manifesting bias based on socioeconomic status.” Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, Legal Memorandum No. 191 at 4, The Heritage Foundation (Oct. 6, 2016). (The same result would ensue under the amendments proposed here because, although the protected classes under the proposed amendments do not, like ABA Model Rule 8.4(g), include “socioeconomic status,” the proposed amendments prohibit lawyers from engaging in any “hostile, demeaning, humiliating, or discriminatory conduct in law-related activities” without limiting such discrimination to those particular protected classes.)
    But the speech in both these examples would clearly be constitutionally protected. The fact that such constitutionally protected speech would violate the proposed Rule demonstrates that the Rule is unconstitutionally overbroad.
    Indeed, regardless of whether any attorney is ultimately prosecuted under the proposed amendments for engaging in protected speech, the mere possibility that a lawyer could be disciplined for engaging in such speech would, in and of itself, chill lawyers’ speech – which is precisely what the overbreadth doctrine is designed to prevent. Massachusetts v. Oakes, 491 U.S. 576, 584 (1989) (noting that overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression.).
    Therefore, because the proposed amendments will prohibit a broad swath of protected speech and would chill lawyers’ speech, the amendments would not pass constitutional muster.

    5. The Proposed Amendments Will Constitute Unconstitutional Content-Based Speech Restrictions.
    In proscribing speech that is hostile, demeaning, humiliating, or discriminatory toward members of certain designated classes, the proposed Rule will constitute an unconstitutional content-based speech restriction. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (explaining that government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.); see also Am. Freedom Def. Initiative v. Metro. Transp. Auth., 880 F. Supp. 2d 456 (S.D.N.Y. 2012) (holding that an ordinance prohibiting demeaning advertisements only on the basis of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation is an unconstitutional content-based violation of the First Amendment).
    Indeed, the U.S. Supreme Court recently reiterated this principle in a case that is directly relevant when considering the constitutional infirmities of the proposed amendments. In Tam, the Court found that a Lanham Act provision – prohibiting the registration of trademarks that may “disparage” or bring a person “into contempt or disrepute” – facially unconstitutional, because such a disparagement provision – even when applied to a racially derogatory term – “. . . offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 137 Sup. Ct. 1744. In a concurring opinion joined by four Justices, Justice Kennedy described the constitutional infirmity of the disparagement provision as “viewpoint discrimination” – “an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” Id. at 1766. The problem, he pointed out, was that, under the disparagement provision, “an applicant may register a positive or benign [trade]mark but not a derogatory one” and that “This is the essence of viewpoint discrimination.” Id. Likewise, under the proposed Rule here, attorneys may engage in positive or benign speech with regard to the protected classes, but not derogatory, demeaning, or harmful speech. Under the Supreme Court’s Tam decision, this is the essence of viewpoint discrimination, and presumptively unconstitutional.
    The late Professor Rotunda provided a concrete example of how the professional rules like the amendments proposed here may constitute an unconstitutional content-based speech restriction, stating that “At another bar meeting dealing with proposals to curb police excessiveness, assume that one lawyer says, ‘Black lives matter.’ Another responds, ‘Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime.’ A third says, ‘All lives matter.’ Finally, another lawyer says (perhaps for comic relief), ‘To make a proper martini, olives matter.’ The first lawyer is in the clear; all of the others risk discipline.” Rotunda, supra.
    Under the proposed amendments, the content of a lawyer’s speech will determine whether or not the lawyer has or has not violated the rule. For example, a lawyer who speaks against same-sex marriage may be in violation of the rule for engaging in speech that some consider to be discriminatory based on sexual orientation or marital status, while a lawyer who speaks in favor of same-sex marriage would not be. Or as the Minnesota case discussed above illustrates, one may speak favorably about transgender issues, but not unfavorably. These are classic examples of unconstitutional viewpoint-based speech restrictions. See R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (holding that the government may not regulate speech based on hostility – or favoritism – towards the underlying message expressed). In R.A.V., the Supreme Court struck down, as facially unconstitutional, the city of St. Paul’s Bias-Motivated Crime Ordinance because it applied only to fighting words that insulted or provoked violence “on the basis of race, color, creed, religion or gender,” whereas expressed hostility on the basis of other bases were not covered. Id. In striking down the Ordinance, the Court stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at 390. That is precisely what the proposed Rule does. For that reason, commentators have described Model Rule 8.4(g) as a speech codes for lawyers.
    For those who would deny that the proposed amendments create an attorney speech code, we need only point them to Indiana, a state that has adopted a black letter non-discrimination rule. In In the Matter of Stacy L. Kelley, 925 N.E.2d 1279 (Ind. 2010), an Indiana attorney was professionally disciplined under Indiana’s Rule 8.4(g) for merely asking someone if they were “gay.” And in In the Matter of Daniel C. McCarthy, 938 N.E.2d 698 (Ind. 2010), an attorney had his license suspended for applying a racially derogatory term to himself. In both cases, the attorneys were professionally disciplined merely for using certain disfavored speech.
    Because it constitutes an unconstitutional speech code for lawyers, the proposed amendments should be rejected.

    6. The Proposed Amendments Will Violate Attorneys’ Free Exercise of Religion and Free Association Rights.
    The proposed amendments will also violate attorneys’ constitutional right of free religious exercise because the amendments prohibit religious expression if such expression could be considered hostile, demeaning, humiliating, or discriminatory.
    The ACLU of New Hampshire opposed a similar rule – considered but not adopted – in that state, noting correctly that such rules threaten religious liberty because “one person’s religious tenet could be another person’s manifestation of bias.” American Civil Liberties Union of New Hampshire, Letter to Advisory Committee on Rules, New Hampshire Supreme Court (May 31, 2018).
    So, for example, the proposed amendments would prohibit attorneys from engaging in “bigotry” and “prejudice.” But “bigotry” means a “stubborn and complete intolerance of any creed, belief, or opinion that differs from one’s own.” http://www.dictionary.com/browse/bigotry.# (last visited 7/9/2020) and “prejudice” means “unreasonable feelings, opinions, or attitudes, especially of a hostile nature, regarding an ethnic, social, or religious group.” http:/www.dictionary.com/browse/prejudice# (last visited 7/9/2020). But lawyers of faith may very well have religiously informed beliefs that, to others, might appear intolerant or hostile. The proposed amendments would professionally condemn such beliefs.
    As an illustration of this, the late Professor Rotunda posited the example of Catholic attorneys who are members of the St. Thomas More Society, an organization of Catholic lawyers and judges. If the St. Thomas More Society should host a CLE program in which members discuss and, based on Catholic teaching, voice objection to the Supreme Court’s same-sex marriage rulings, Professor Rotunda explained that those attorneys may be in violation of the rule because they have engaged in conduct related to the practice of law that could be considered discrimination based on sexual orientation. In fact, Professor Rotunda pointed out that an attorney might be in violation of the rule merely for being a member of such an organization. Rotunda, supra at 4-5. The fact that the proposed amendments may prohibit such speech or membership indicates that the proposed amendments will be unconstitutional.
    To those who might deny the proposed amendments could or would be applied in that way, one need only note the above-referenced action of the CLE accrediting authorities in Minnesota upon the Minnesota Lavender Bar Association’s complaint that a CLE co-sponsored by a Roman Catholic law school, discussing transgender issues from a Roman Catholic perspective, constituted “harassment” under ABA Model Rule 8.4(g), stating that the religiously based discussion constituted “transphobic rhetoric” and “discrimination.” In essence, that case stands for the proposition that the prohibition of “harassment” and “discrimination” as embodied in professional conduct rules, such as the one proposed here in Utah, will apply to and prohibit religious speech – speech that expresses a religious tenet of some, but to others is viewed as discrimination or harassment.
    Religiously based legal organizations have consistently opposed professional conduct rules like the one being considered here in Utah on the ground that such rules threaten religious liberty. Those groups include the Catholic Bar Association – which has adopted a resolution stating that Model Rule 8.4(g) is not only unconstitutional, but that it is “incompatible with Catholic teaching and the obligations of Catholic lawyers” – as well as the Christian Legal Society. Both organizations have cause for concern because, as Professor Rotunda presciently warned, merely being members of those organizations would violate rules like the amendments being proposed here. How so? Because both organizations could be considered “law related activities” and both limit their membership based on religion. The Christian Legal Society requires its members to subscribe to a Christian statement of faith. The Catholic Bar Association requires its members to be practicing Roman Catholics. Therefore, both legal organizations “discriminate” on the basis of religion in a law-related activity– something explicitly prohibited under the terms of the proposed amendments. The proposed amendments would, essentially, destroy both organizations.
    Because the proposed amendments will violate attorneys’ Free Exercise (and Free Association) rights, they should be rejected.

    7. The Proposed Amendments Will Result In The Suppression of Politically Incorrect Speech While Protecting Politically Correct Speech.
    Under a literal reading of the proposed amendments, a law firm’s race or sex-based affirmative action hiring practices would constitute a violation because the proposed Rule 8.4(h) makes clear that it is professional misconduct for a lawyer in any law related activity to discriminate on the basis of race or sex. Therefore, any hiring or other employment practices that favor applicants or employees on the basis of either of those characteristics are forbidden.
    But does anyone really believe that a lawyer will ever be prosecuted for favoring women or racial minorities in hiring or promotion decisions, undertaken in order to increase diversity in the legal profession? Of course not. In fact, discrimination for those purposes will actually be favored.
    Indeed, the proposed Comment [4] to the proposed Rule 8.4(g) makes this practice, of protecting favored speech and suppressing disfavored speech, explicit because Comment [4] to the Rule contains an express exception for implementing initiatives aimed at recruiting, hiring, retaining, and advancing employees of diverse backgrounds or from historically underrepresented groups, or sponsoring diverse law student organizations, providing that such are not violations of paragraph (g).
    So, if an attorney engages in discriminatory conduct that furthers a politically correct interest, the disciplinary authority will find that the discrimination is undertaken to promote diversity or inclusion, or to serve an underserved population – and for that reason does not violate the Rule. But if an attorney engages in discriminatory conduct that furthers a politically incorrect interest, the state will prosecute that attorney for violating the Rule. And because the terms “hostile, demeaning, humiliating, or discriminatory” are vague and overbroad, professional disciplinary authorities will be able to interpret those terms in ways that result in selective prosecution of politically incorrect or disfavored speech, while protecting politically correct or favored speech.
    This phenomenon has already been observed in other similar contexts. For example, a Civil Rights Commission in Colorado prosecuted a Christian baker for declining to bake a wedding cake for a same-sex couple, but refused to prosecute three other bakers who refused to bake a cake for a Christian, finding that the first constituted illegal discrimination but that the second did not. The reason underlying this disparate treatment was obvious – in the first the complaining party was a member of a politically favored class, while in the second the complaining party was a member of a disfavored one. The U.S. Supreme Court condemned that unequal treatment, stating that it constituted a “clear and impermissible hostility toward the religious beliefs” of the baker the Commission selectively chose to prosecute. Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018).
    These exceptions also render the proposed amendments unconstitutional because – by prohibiting only disfavored discriminatory messages, while allowing favored ones – the proposed amendments create a viewpoint-based speech restriction. See R.A.V., 505 U.S. 377.
    No rule of professional conduct should punish certain viewpoints while protecting and advancing others. In fact, to do so would be unconstitutional.

    8. Assurances That the Proposed Amendments Will Not Be Applied in an Unconstitutional Manner Does Not Cure the Amendments’ Constitutional Infirmities.
    Proposed Comment [5] to Rule 8.04 provides that: Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution. This provision was apparently added in order to address the concern that, although the proposed amendments could be applied in an unconstitutional manner, they will not be – and to assuage attorneys’ concerns about the proposed amendments’ constitutional infirmities. However, such a “savings clause” is ineffective to cure the proposed amendments’ constitutional infirmities.
    First, proponents of the proposed amendments do not have the authority to speak on behalf of a state’s professional disciplinary authorities. Proponents of the amendments cannot say how the disciplinary authorities will or will not interpret or apply the proposed amendments.
    And second, this very argument was made and rejected in Stevens, supra. There, in a case challenging the constitutionality of a statute criminalizing certain depictions of animal cruelty, the U.S. Supreme Court addressed the government’s claim that the statute was not unconstitutionally overbroad because the government would interpret the statute in a restricted manner so as to reach only “extreme” acts of animal cruelty, and that the government would not bring an action under the statute for anything less. In response, the high court pointed out that “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” The court pointed out the danger in putting faith in government representations of prosecutorial restraint, and stated that “The Government’s assurance that it will apply § 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” Id. at 480.
    In other words, far from curing its constitutional defects, representations such as that provided in the proposed Comment [5] of the proposed amendments – that the amendments will not be applied so as to violate the Constitution – constitute indirect admissions that the proposed amendments are, in fact, constitutionally infirm.
    In arguing that the proposed Rule will not be applied unconstitutionally, proponents may also point to the Rule’s provision that “Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). But that provision does not cure the defects either.
    It does not cure the defects, first, because the cited provision is circular. In order to qualify as “legitimate” the advice or advocacy must, of course, be consistent with the Rules. But in order to be consistent with the Rules (in particular with proposed Rule 8.4(h) itself, incorporating the Rules of Professionalism and Civility), the advice or advocacy cannot be “hostile, demeaning, humiliating, or discriminatory.” In other words, under the proposed Rule, advice or advocacy that could be considered to constitute hostile, demeaning, humiliating, or discriminatory speech or conduct can, by definition, never constitute legitimate advocacy because hostile, demeaning, humiliating, or discriminatory advice or advocacy is inconsistent with proposed Rule 8.4(h) itself.
    Further, by stating that the Rule will not prohibit “legitimate advocacy” the proposed Rule – for the first time – creates the concept of illegitimate advocacy. Advocating for clients is the very essence of what lawyers do. If the proposed Rule is adopted, however, an attorney will need to worry whether her advocacy might be considered “illegitimate” and, therefore, a violation of professional ethics. And having to worry about that will chill the lawyer’s speech and interfere with the attorney’s ability to provide her client with zealous representation.
    Finally, who will determine whether an attorney’s advocacy is legitimate or illegitimate? The disciplinary authorities, of course, will make that determination, in their unfettered discretion, after the fact and, potentially, on political or ideological grounds.

    C. The Proposed Amendments Will Invade The Historically Recognized Right And Duty Of Attorneys To Exercise Professional Autonomy In Choosing Whether To Engage In Legal Representation.
    If the proposed amendments are adopted, attorneys will be subject to discipline for acting in accordance with their professional and moral judgment when making decisions about whether to accept, reject, or withdraw from certain cases – because, under the proposed amendments, attorneys will not only be forced to take cases or clients they might have otherwise declined, they will be forced to take cases or clients the Rules of Professional Conduct forbid them to take.
    1. Proposed Rule 8.4(h) Provides No Exception For Attorney Client Selection Decisions
    In countering this contention, proponents of the amendments will undoubtedly point to Comment [4] of the proposed amendments, which provides that: “[4] Paragraph (g) does not limit the ability of a lawyer to accept, decline, or, in accordance with Rule 1.16, withdraw from a representation.” However, this provision applies, on its face, only to proposed Rule 8.4(g) – not proposed Rule 8.4(h) – and proposed Rule 8.4(g) applies only to “unlawful, discriminatory or retaliatory employment practice[s] under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act” (our emphasis). But neither of those statues would even apply to an attorney’s client selection decisions because the relationship between a lawyer and his or her clients does not constitute an employment relationship under either statute.
    Proposed Rule 8.4(h), on the other hand, prohibits conduct that violates Rule 14-301 of the Standards of Professionalism and Civility, which prohibits lawyers from engaging in any “discriminatory conduct in law-related activities.” And, unlike proposed Rule 8.4(g), the proposed amendments contain nothing that exempts a lawyer’s client selection decisions from Rule 8.4(h)’s prohibitions. Therefore, since a lawyer’s client selection decisions are clearly a law-related activity, the proposed amendments must prohibit lawyers from engaging in “discriminatory conduct” in exercising their client selection decisions.
    And we know that limiting the client selection decision exemption to proposed Rule 8.4(g) and not extending it to proposed Rule 8.4(h) is not just an oversight, because the drafters of the proposed amendment knew how to make provisions applicable to both 8.4(g) and (h) if they wanted. So, for example, the proposed amendments specifically provide that: “Comment [5]. Paragraphs (g) and (h) do not apply to expression or conduct protected by the First Amendment to the United States Constitution or by Article I of the Utah Constitution” (our emphasis).
    So, in short, contrary to the assertions of the Rule’s proponents, the proposed Rule will apply to an attorney’s client selection decisions and will prohibit attorneys from declining representation of particular clients if to do so could be considered discriminatory.
    2. The Proposed Amendments Constitute An Alarming Departure From the Historically and Professionally Recognized Right of Attorneys to Select Their Own Clients.
    This is an alarming departure from the professional principles historically enshrined in Utah’s Rules of Professional Conduct and its predecessors, which have, before now, always respected the attorney’s freedom and professional autonomy when it comes to choosing who to represent and what cases to accept.
    Although the Rules have placed restrictions on which clients attorneys may not represent (see, for example, Rule 1.7 which precludes attorneys from representing clients or cases in which the attorney has a conflict of interest, and Rule 1.16(a) which requires attorneys to decline or withdraw from representation when representation would compromise the interests of the client), never before have the Rules required attorneys to take cases the attorney decides – for whatever reason – he or she does not want to take, or to represent clients the attorney decides – for whatever reason – he or she does not want to represent. (Although Rule 6.2 prohibits attorneys from seeking to avoid court appointed representation, that Rule does not apply to an attorney’s day-to-day voluntary client selection decisions – and even in its peculiar context of court-appointed representation the Rule expressly allows attorneys to decline such appointments “for good cause” – including because the attorney finds the client or the client’s cause repugnant.)
    Indeed, up until now, the principle that attorneys were free to accept or decline clients or cases at will, for any or no reason, prevailed universally. See, for example, Modern Legal Ethics, Charles W. Wolfram, p. 573 (1986)(“a lawyer may refuse to represent a client for any reason at all – because the client cannot pay the lawyer’s demanded fee; because the client is not of the lawyer’s race or socioeconomic status; because the client is weird or not, tall or short, thin or fat, moral or immoral.”). The reasons underlying this historically longstanding respect for attorneys’ professional autonomy in making client and case selection decisions are clear.
    First, the Rules themselves respect an attorney’s personal ethics and moral conscience. For example, section [7] of the Preamble to Utah’s Rules provides that “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience” and section [9] of the Preamble provides that “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person . . . Such issues must be resolved through the exercise of sensitive professional and moral judgment . . .”
    If a lawyer is required to accept a client or a case to which the attorney has a moral objection, however, the Rules would have the effect of forcing the attorney to violate his or her personal conscience, would interfere with the lawyer’s interest in remaining an ethical person, and would prohibit lawyers from exercising their own moral judgment.
    And second, the Rules impose upon attorneys a professional obligation to represent their clients zealously (Comment [1] to Rule 1.3) and without personal conflicts (Rule 1.7(a)(2)). A lawyer’s ability to conform to those duties, however, would be compromised should the lawyer have personal or moral objections to a client or a client’s case.
    To force an attorney to accept a client or case the attorney does not want, and to then require the attorney to provide zealous representation to that client, is unfair to the attorney because doing so places conflicting and unresolvable obligations upon the lawyer. But it will also harm clients because every client deserves an attorney who is not subject to or influenced by any interests which may, directly or indirectly, adversely affect the lawyer’s ability to zealously, impartially, and devotedly represent the client’s best interests.
    We must always remember that a primary purpose of the Rules is to protect the public, by ensuring that attorneys represent their clients competently and without personal interests that will adversely affect the attorney’s ability to provide clients with undivided and zealous representation. It recognizes the principle that the client’s best interest is never to have an attorney who – for any reason – cannot zealously represent them or who has a personal conflict of interest with the client.
    The proposed amendments to the Rules, however, will force an attorney to represent clients who the attorney cannot represent zealously or who, on account of the attorney’s personal beliefs about the client or the case, will not be able to represent without a personal conflict of interest. In that respect, the proposed amendments will harm clients.
    Indeed, the proposed amendments, if adopted, would introduce insidious deception into the attorney-client relationship because – in order to avoid violating the Rule – some attorneys will be led to conceal their personal animosities from clients, thereby saddling clients with attorneys who – if the client knew of the attorney’s animosities – the client would not retain.
    For these reasons, too, the proposed amendments should be rejected.

     
  29. Thaddeus William Wendt

    Part 2 of Thaddeus Wendt’s Comment Post

    3. The Proposed Amendments Conflict with Other Professional Obligations and Rules of Professional Conduct.
    Another significant problem with the proposed amendments is that they conflict with other professional obligations and Rules of Professional Conduct. For example:
    a. The Proposed Amendments Conflict with Rule 1.7 (Conflicts of Interest). Rule 1.7 provides that: “(a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer” (our emphasis). And Restatement (Third) of the Law Governing Lawyers §125 (2000) clarifies that: “A conflict under this Section need not be created by a financial interest. . . Such a conflict may also result from a lawyer’s deeply held religious, philosophical, political, or public-policy belief” (our emphasis).
    So – on the one hand the proposed Rule requires an attorney to accept clients and cases, despite the fact that such clients or cases might run counter to the attorney’s deeply held religious, philosophical, political, or public policy principles, while at the same time Rule 1.7 provides that accepting a client or a case – when the client or case runs counter to such beliefs of the attorney – would violate Rule 1.7’s Conflict of Interest prohibitions.
    b. The Proposed Amendments Conflict With Rule 1.3. (Zealous Representation). Attorneys have a professional duty to represent their clients zealously. Indeed, the U.S. Supreme Court has stated that lawyers have a fundamental duty to zealously represent their clients. Evans v. Jeff D., 475 U.S. 717, 758 (1986). See also Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994)(stating that “a lawyer’s first duty is zealously to represent his or her client”). So, this is a fundamental professional duty, independent of the Rules of Professional Conduct. But Rule 1.3 of the Utah Rules of Professional Conduct also establishes such a duty. The Comment to Rule 1.3 (Diligence) states that “A lawyer must . . . act . . .with zeal in advocacy upon the client’s behalf.”
    “Zeal” means “a strong feeling of interest and enthusiasm that makes someone very eager or determined to do something.” Merriam-Webster.com/dictionary/zeal. Synonyms are “passion” and “fervor”.
    But how would an attorney be able to zealously represent a client whose case runs counter to the attorney’s deeply held religious, political, philosophical, or public policy beliefs?
    Under proposed Rule 8.4(h), the attorney may not be allowed to reject a case or client she might otherwise reject – due to the attorney’s personal beliefs – but then must also represent that client with passion and fervor, enthusiastically and in an eager and determined manner.
    Is that humanly possible? We would submit that it is not. And we contend that that is exactly why the Rules provide that, if a lawyer cannot do that – for whatever reason – even a discriminatory one – they must not take the case.
    How is that conflict to be resolved?
    c. The Proposed Amendments Conflict with Rule 6.2 (Accepting Appointments). – Rule 6.2 provides that “A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause: such as: . . . (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client” (our emphasis).
    Although this Rule is technically applicable only to court appointments, it is important to what we are discussing here because it contains a principle that should be equally – if not more – applicable to an attorney’s voluntary client-selection decisions. Namely, the Rule recognizes that a client or cause may be so repugnant to a lawyer that the lawyer-client relationship would be impaired or the lawyer’s ability to represent the client be adversely affected.
    Indeed, the Comment to Rule 6.2 sets forth the general principle that “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”
    And yet, the proposed amendments would require an attorney to represent clients and cases the lawyer may find repugnant.
    d. The Proposed Amendments Conflict with Rule 1.16 (Declining or Terminating Representation). Rule 1.16(a)(1) provides that: (a) . . . a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in the violation of the Iowa Rules of Professional Conduct or other law. However, we have already seen that Rule 1.7 would prohibit an attorney from representing a client who – due to the lawyer’s personal beliefs – the lawyer could not represent without a personal conflict of interest interfering with that representation; and Rule 1.3 would prohibit an attorney from representing a client if the attorney could not do so zealously; and Rule 6.2 provides that a lawyer may decline court appointed representation if the attorney finds the client or the client’s cause so repugnant as to interfere with the ability of the lawyer to provide un-conflicted representation. To represent clients in any of these situations would constitute a violation of the Rules of Professional Conduct. But the proposed amendments will require attorneys to accept clients and cases that – due to the attorney’s personal beliefs about the client or the case – the attorney would otherwise have to decline. So, the proposed amendments is in conflict with Rule 1.16 too.
    In the event of an inevitable conflict, which Rule is going to prevail?
    Indeed, the fact that the proposed amendments conflict with other Professional Rules reveals a foundational problem with the proposed amendments – and that is that the proposed amendments are an attempt to impose upon the legal profession a non-discrimination construct that is, in its basic premises, inconsistent with who attorneys are and what they professionally do. It is an attempt to force a round peg into a square hole.
    In considering the proposed amendments, we must remember that the non-discrimination template on which the proposed amendments are based is taken from the context of public accommodation laws – non-discrimination laws that are imposed in the context of merchants and customers. But lawyers are not mere merchants, and a lawyer’s clients are not mere customers. Unlike merchants and customers, attorneys have fiduciary relationships with their clients.
    Attorneys are made privy to the most confidential of their client’s information, and are bound to protect those confidentialities; they are bound to take no action that would harm their clients; and attorneys’ relationships with their clients oftentimes last months or even years. And once an attorney is in an attorney-client relationship, the attorney oftentimes may not unilaterally sever that relationship. None of those things are true with respect to a merchant’s relationship with a customer. So it is one thing to say a merchant may not pick and choose his customers. It is entirely another to say a lawyer may not pick and choose her clients.
    No lawyer should be required to enter into what is, by definition, a fiduciary relationship with a client the attorney does not want – for whatever reason – to represent.

    D. The Proposed Rule is Unnecessary and Will Unnecessarily Burden Utah’s Professional Disciplinary Authorities.
    Many of the circumstances the proposed Rule would address are already addressed by the current Rules of Professional Conduct or other laws.
    First, proposed Rule 8.4(h) prohibits conduct that prejudices the administration of justice. And proposed Comment [3] provides that A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race; color; sex; pregnancy, child birth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion, national origin; disability; sexual orientation; gender identity; or genetic information may violate paragraph (d) when such actions are prejudicial to the administration of justice (our emphasis).
    But Rule 8.4(d) already prohibits attorney conduct that prejudices the administration of justice. And, in fact, sexual harassment has been professionally disciplined in other states under Rule 8.4(d). See, e.g., Attorney Grievance Comm’n of Md. v. Goldsborough, 624 A.2d 503 (Ct. App. Maryland 1993) (holding that nonconsensual kissing of clients and spanking clients and employees can violate Rule 8.4(d) prohibiting lawyer from engaging in conduct that is prejudicial to the administration of justice). Likewise, harassing and discriminatory judicial behavior – as well as discriminatory and harassing conduct of attorneys in proceedings before judicial tribunals – are already addressed in the Utah Code of Judicial Conduct, Rule 2.3(B) and (C).
    For all these reasons, the proposed amendments are redundant and unnecessary.
    In addition, harassment and discrimination in the legal workplace – which proposed Rule 8.4(g) would address – are also already addressed in Title VII at the federal level, as well as in Utah’s employment nondiscrimination laws, including §34A-5-106 of the Utah Antidiscrimination Act.
    Also the Rule will burden professional disciplinary authorities with having to process very fact-intensive, jurisprudentially complicated, and duplicative cases – cases that could and should be processed under some other statute or ordinance, by judicial authorities better equipped to handle them.
    Further, proposed Rule 8.4(g) makes employment discrimination and harassment a professional, as well as a statutory, offense, divorced from antidiscrimination and harassment laws because, under proposed Rule 8.4(g), “Discrimination or harassment does not need to be previously proven by a judicial or administrative tribunal or fact-finder in order to allege or prove a violation of paragraph (g).” This could very well subject attorneys to multiple prosecutions and inconsistent obligations and results. Lawyers could be forced to defend against parallel prosecutions, being pursued by different prosecutorial authorities, all at the same time. And, because different legal and evidentiary standards may apply in different proceedings, attorneys could – under the same set of facts – be exonerated from allegations of having violated an employment nondiscrimination or harassment law, but still be found to have engaged in harassing or discriminatory conduct that violates the Rules of Professional Conduct, or vice versa. Some states have recognized the importance of this issue by requiring that any claim against an attorney for unlawful discrimination be brought for adjudication before a tribunal other than a disciplinary tribunal before being brought before a disciplinary tribunal. See, for example, Illinois Rules of Professional Conduct Rule 8.4(j) and New York Rules of Professional Conduct Rule 8.4(g).
    So for all these reasons, too, the proposed amendments should be rejected.

    III. Conclusion

    The proposed amendments are unconstitutional. They are unconstitutionally vague. They are unconstitutionally overbroad. And they constitute an unconstitutional content-based speech restriction. They also violate attorneys’ Free Speech, Free Exercise, and Free Association rights.
    In addition to being constitutionally infirm, the proposed amendments would sever Utah’s Rules of Professional Conduct from the legitimate interests of the bar in regulating the legal profession, conflict with other Rules of Professional Conduct and professional obligations attorneys have, and would authorize professional disciplinary authorities to discipline lawyers for non-commercial speech and conduct that neither prejudices the administration of justice nor renders attorneys unfit to practice law. The proposed amendments would also subject attorneys to duplicative prosecutions, as well as inconsistent obligations and results. And they would harm clients.
    For all these reasons, the proposed amendments to Rule 8.04 of the Utah Rules of Professional Conduct and Rule 14-301 of the Standards of Professionalism and Civility should be rejected.

    Respectfully submitted,
    Danny C. Leavitt #15185
    Frank D. Mylar #5116
    Thaddeus W. Wendt #11977

     
  30. Thaddeus W. Wendt

    The following document is too long to post within these comment fields. I am sharing the document via Dropbox and Google Drive for your convenience. Thank you for your consideration. Feel free to contact me should you need better access.

    https://www.dropbox.com/s/yq1vypzg37cfh3h/Utah%202020%20Opposition%20to%20Proposed%20Rule%208.04%20Amendment%20%281%29.docx?dl=0

    https://fellerwendt-my.sharepoint.com/:w:/g/personal/thaddeus_fellerwendt_onmicrosoft_com/ESl2fuUbTntEh9x4gFNGU7cBJ3Sw1l4_4ZvPMTSVhJ3zyA?e=yqxLTn

    Sincerely,

     
  31. Ethan Blevins

    Pacific Legal Foundation submits this comment letter in response to the Supreme Court and Judicial Council’s request for public comment on the adoption of Rule of Professional Conduct 8.4(h) and its comments. Pacific Legal Foundation’s undersigned attorneys Ethan Blevins and Daniel Ortner have particular interest in this matter: Mr. Blevins is a member of the Utah Bar, and Mr. Ortner attended law school in Utah and clerked for the Utah Supreme Court.

    Proposed Rule 8.4(h), if adopted, will suppress a wide array of protected speech. While the Bar has legitimate regulatory interests in regulating some attorney speech, such as client solicitation or client confidentiality, the proposed rule goes well beyond the scope of those interests. Among other things, the Proposed Rule mandates that lawyers must “avoid hostile, demeaning, or discriminatory conduct.” Further, the rule would transform all the standards in USB 14-301 from aspirational to mandatory. It will therefore additionally prohibit lawyers from exhibiting “ill will,” and require lawyers to “refrain from expressing scorn, superiority, or disrespect,” avoid “inappropriate language,” and treat participants in legal proceedings “in a courteous and dignified manner.” These may be noble aspirations. When augmented with enforceable sanctions, however, these standards raise troubling constitutional concerns.

    Although this letter focuses on Proposed Rule 8.4(h), states across the country have rejected rules modelled after ABA Model Rule 8.4(g) because it raises similar concerns. Indeed, the Attorneys General of several states have published opinions arguing that Model Rule 8.4(g)’s restrictions on speech “that the lawyer knows or reasonably should know is harassment or discrimination” would violate the Constitution. See, e.g., ABA Model Rule of Professional Conduct 8.4(g) and LSBA proposed Rule 8.4(g) violate the First and Fourteenth Amendments of the United States Constitution, La. Att’y Gen. Op. 17-0114 (Sept. 8, 2017), https://perma.cc/9TWR-8GY9; S.C. Att’y Gen. Op. Letter to Hon. John R. McCravy III, S.C. House of Representatives (May 1, 2017), https://perma.cc/ED72-3UGM; American Bar Association’s New Model Rule of Professional Conduct 8.4(g), Tenn. Att’y Gen. Op. 18-11 (Mar. 16, 2018), https://perma.cc/DZY2-YG23; Whether adoption of the American Bar Association’s Model Rule of Professional Conduct 8.4(g) would constitute violation of an attorney’s statutory or constitutional rights (RQ-0128-KP), Tex. Att’y Gen. Op. KP-0123 (Dec. 20, 2016), https://perma.cc/M248-HKGG.

    First Amendment and Constitutional Law scholars have also condemned Model Rule 8.4(g) for its potential to stifle or censor attorney speech. See, e.g., Andrew F. Halaby & Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Legal. Prof. 201, 257 (2017); Josh Blackman, Reply: A Pause for State Courts Considering Model Rule 8.4(G) The First Amendment and ‘Conduct Related to the Practice of Law,’ 30 Geo. J. Legal Ethics 241, 245 (2016); Michael S. McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J.L. & Pub. Pol’y 173, 205 (2019). PLF focuses this letter on Proposed Rule 8.4(h) because it has thus far received less attention but shares in many of the fundamental flaws of Model Rule 8.4(g).

    The Proposed Rule would suppress free speech in the legal profession beyond anything necessary to the bar association’s legitimate regulatory interests. Pacific Legal Foundation urges the Supreme Court to reject this rule, which would impose a vague, intrusive, and unconstitutional code of civility on Utah attorneys. The rule would impair freedom of speech and freedom of expression in the legal profession, and particularly chill the speech of public interest lawyers who engage in litigation concerning controversial topics such as race and sex discrimination.

    I. The Proposed Rule restricts protected speech beyond what’s necessary to fulfil the Bar’s interest in attorney professionalism, client protection, or the administration of justice.

    While the Proposed Rule frames portions of its mandate in terms of conduct, its demands extend to protected speech. The Supreme Court has frequently and adamantly affirmed that the First Amendment protects the sort of speech targeted by the Proposed Rule—and even coarse, hurtful, and offensive speech. “Indeed, the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided or even hurtful.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). The Supreme Court has held, for instance, that the First Amendment protected the wearing of a jacket with highly offensive language in municipal court, noting that “one man’s vulgarity is another’s lyric.” See Cohen v. California, 403 U.S. 15, 25 (1971). Hence, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.” Matal v. Tam, 137 S. Ct. 1744, 1763 (2017). Speech restrictions that target offensive language or ideas empower authorities to punish dissident voices and are therefore “poison to a free society.” Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (Alito, J., concurring). The Bar may regulate the content of attorney speech, but generally its regulations must meet strict scrutiny: i.e., the regulations further a compelling government interest in a narrowly tailored manner. NIFLA v. Becerra, 138 S. Ct. 2361, 2371 (2018).

    Situations where government need not satisfy strict scrutiny to restrict offensive speech are very narrow. Threats of physical violence, for instance, may not warrant protection, see Virginia v. Black, 538 U.S. 343 (2003), nor incitement to immediate violence. See Brandenburg v. Ohio, 395 U.S. 444 (1969). And in rare instances, an egregious personal insult may not merit First Amendment protection. See Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). The Proposed Rule, however, blows past all these narrow exceptions by penalizing speech that some may consider humiliating, disrespectful, hostile, or discriminatory. Hence, the Proposed Rule must be narrowly tailored to further a compelling government interest.

    The Utah Bar does have a recognized interest in protecting clients, cultivating professionalism, and improving the administration of justice. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460 (1978) (“The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the court.’”) (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, (1975)). The challenge for Proposed Rule 8.4(h), however, will be demonstrating that the rule is narrowly tailored to achieve that interest, i.e., that the rule does not burden more speech than necessary to satisfy the Bar’s regulatory interests.

    By rendering the aspirational language in USB 14-301 into a sanctionable mandate, the Proposed Rule appears to extend well beyond the Bar’s interests and threatens to interfere with vigorous client representation. For instance, depositions frequently involve intense and often uncomfortable questioning. Anyone who has observed the deposition of an uncooperative witness has likely seen speech that a witness or opposing counsel could easily construe as “hostile, demeaning [or] humiliating” or exhibiting “ill-will” or “disrespect.” It is not difficult to imagine an opposing counsel wielding the now mandatory USB 14-301 language to threaten deposing attorneys with a bar complaint if they pursue a line of questioning that opposing counsel would rather avoid. The Proposed Rule is thus not narrowly tailored to the Bar’s interests in protecting clients, maintaining professionalism, or administering justice. In fact, the proposed rule likely threatens to dampen advocacy and undermine competent representation.

    II. The Proposed Rule extends beyond actual legal proceedings or client representation to circumstances where the bar has a limited regulatory interest

    It would be problematic enough if Proposed Rule 8.4(h) only extended to situations where an attorney was acting as an officer of the court such as when making a court appearance or taking a deposition. In such contexts the bar might have a heightened interest in attorney conduct. See Ohralik, 436 U.S. at 461 (noting that a state has a heightened interest “to the extent that the ethical standards of lawyers are linked to the service and protection of clients”). But the Proposed Rule sweeps far beyond these settings and covers “CLE’s; events sponsored by the Bar, Bar sections, or Bar associations; and firm parties,” as well as other undefined “law-related activities.” In these settings, the Bar’s interest is highly attenuated. The Bar lacks a compelling regulatory interest over whether or not an attorney utters “inappropriate language” at his firm’s annual Christmas party.

    These restrictions are also extraordinarily vague. For instance, does the proposed rule apply when two attorneys at a firm meet for dinner but happen to discuss their work? And how would an attorney even know whether the rules of professional conduct reach to the dinner table, the golf course, or the theater? The proposed rule and comments provide no guidance.

    While it is of course desirable that attorneys act with professionalism and civility at all times and in all places, this aspirational desire should not be made mandatory outside the courtroom or other formal proceedings. The Bar has no compelling interest in disciplining an attorney for making a crass joke at a cocktail party or offering some politically insensitive remarks at a CLE event. Attorneys would constantly live in fear that their remarks would be misconstrued and that they would be subject to discipline. The chilling effect that such a policy would have on attorney conduct far overshadows any regulatory justification for the speech restrictions.

    III. The proposed rule is unconstitutionally vague

    While aspirational language is often amorphous, reflecting broad goals, that language does not translate well into a legal mandate where due process demands heightened specificity. Due process requires legally binding language to be clear for two reasons: (1) to offer fair notice of the law’s demands to people of ordinary intelligence and (2) to prevent arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (a law must be understandable so that the public can “steer between lawful and unlawful conduct”); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 685 (vague language leads to “regulation in accordance with the beliefs of the individual censor rather than regulation by law”). While often applied to criminal laws, this due process demand applies with particular force to any regulation that bears on free speech interests, since a vague speech restriction “raises special First Amendment concerns because of its obvious chilling effect.” Reno v. ACLU, 521 U.S. 844, 870–71 (1997).

    A litany of phrases and terms in the proposed rule are irredeemably vague. How can lawyers know how to conform their speech to ensure that they are not “reflecting ill-will?” What is “insulting behavior?” What speech can a lawyer fairly anticipate will be considered “hostile,” “demeaning” or “humiliating?” These terms are especially troubling in a profession that is inherently adversarial, where executing one’s duty for a client often will mean impassioned disagreement and hard-nosed advocacy. For instance, undermining a witness’s credibility will almost certainly be “humiliating” to the witness—should a lawyer therefore hesitate to engage in vigorous cross-examination? This unclear terminology applied in contexts where emotions run high and disagreements abound will impose a serious chilling effect. Lawyers cannot know in advance what speech might cross the line, and the highly subjective nature of the Proposed Rule places substantial control in the hands of the Office of Professional Conduct to enforce the rule according to its personal predilections about how the practice of law should be done. If the Bar wishes to have some say over how attorneys conduct themselves in legal proceedings, it must do so with a rule that puts the attorneys on notice of what speech is verboten and guides the enforcement actions of the Office of Professional Conduct.

    The language prohibiting “discriminatory conduct” raises additional vagueness concerns. A wide variety of political advocacy today is seen as discriminatory. California Governor Gavin Newsom, for instance, recently called the President’s executive order excluding undocumented immigrants when determining congressional representation “rooted in racism and xenophobia.” Anita Kumar, Trump wants immigration out of the census—and at the center of the election, Politico (July 21, 2020). Would an attorney defending this executive order in court, in a CLE, or at a local bar event be subject to bar discipline? That may be up to the political persuasions of the investigating bar official. And many pundits view voter ID laws as rooted in racism—would an attorney’s vocal support for such laws expose her to sanction? That would again depend on the discretion of the Office of Professional Conduct.

    Other examples abound. What of a public interest lawyer representing Asian college students denied admission due to race-based affirmative action? Does advocacy questioning affirmative action constitute discriminatory conduct? And what about an attorney who intervenes in the same lawsuit on behalf of African-American students who favor such policies—could this be construed as discriminatory conduct toward Asians? Award-winning author Ibram X. Kendi argues that “[t]he only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” Ibram X. Kendi, How To Be an Antiracist 22 (2019). Is an attorney who openly agrees with Kendi during a “law-related activity” guilty of discriminatory conduct? How about an attorney who disagrees with Kendi?

    Race is not the only topic that raises such concerns. Imagine, for instance, a CLE event where two Utah attorneys debate whether Utah should adopt rent control. The speaker arguing in favor of rent control argues that absentee landlords are profiteering off the poor and that rent control is needed to mitigate their greed. The speaker arguing against rent control extols the virtues of private property ownership and entrepreneurship and argues that renters need to work harder in order to meet the rising cost of rent rather than demand subsidies from landlords. Does either position exhibit “discriminatory conduct” based on socioeconomic status as a protected class? Does either position qualify as expressing “ill will,” “scorn, superiority, or disrespect”? And how would a Utah attorney ever know that?

    As Professor Eugene Volokh put it when discussing Model Rule 8.4(g), the potential scope of the rule is vast, even more so where the list of protected classes is unknown, and it could be applied to dinner conversations “about such matters—Islam evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathroom, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on.” Eugene Volokh, A Speech Code for Lawyers, Banning Viewpoints that Express ‘bias,’ including in law-related social activities, Volokh Conspiracy (Aug. 10, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/10/a-speech-code-for-lawyers-banning-viewpoints-that-express-bias-including-in-law-related-social-activities-2/?noredirect=on. The same is true for Proposed Rule 8.4(h).

    With the threat of bar discipline attached to speech that could be construed as humiliating, disrespectful, hostile, or discriminatory, lawyers will likely curtail protected speech, both in their personal and professional capacities. Potential sanctions for speech subject to the proposed rule can be severe. An attorney who “knowingly” engages in professional misconduct and causes “potential injury to a party, the public, or the legal system” or “potential interference with a legal proceeding” could face suspension. Rule 14-605(b)1). A public reprimand burdening the attorney’s record can issue if a lawyer was merely negligent in professional misconduct and if the behavior “adversely reflects on the lawyer’s fitness to practice law” or “causes injury to a party, the public, or the legal system.” Rule 14-605(c)(2). Hence, a lawyer need not intend to discriminate, humiliate, or disrespect someone for conduct to be sanctionable. Indeed, even the highly suspect ABA Model Rule 8.4(g) requires a higher mens rea standard than mere negligence. Moreover, a nonpublic admonition may issue in the absence of any injury or fitness concern. Rule 14-605(d)(1). While a nonpublic admonition may not seem significant, it can contribute to aggravating factors for future instances of misconduct that serve to heighten the severity of the sanction imposed, up to and including disbarment. See Rule 14-607(a)(1), (3)-(4). The Supreme Court should reject a rule that will chill attorney speech in a wide range of settings.

    IV. Neither the professional speech doctrine nor the commercial speech doctrine apply here.

    Finally, these restrictions on attorney speech cannot be subject to less than strict scrutiny under more deferential doctrines such as the professional speech doctrine or the commercial speech doctrine. In Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), the United States Supreme Court explained that “[s]peech is not unprotected merely because it is uttered by professionals.” Id. at 2372. Indeed, robust protection for professional speech is vital for many “speaking professions,” such as the practice of law, to operate competently and independently.

    Professional speech is subject to diminished protection only in two narrow contexts. First, the disclosure of “purely factual and uncontroversial information” in “commercial advertising.” Id. This exception clearly does not apply to an attorney’s speech at a CLE event or cocktail party. And second, “regulations of professional conduct that incidentally burden speech.” Id. at 2373. This second exception does not allow a state to “under the guise of prohibiting professional misconduct, ignore constitutional rights.” Instead, such regulations must be narrowly focused on regulating “conduct” rather than “speech as speech.” Id.

    In NIFLA, the Supreme Court held that a law which required doctors to provide patients with information about the availability of abortion services unlawfully regulated speech rather than conduct because it “applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.” So too with Proposed Rule 8.4(h). Attorney speech is subject to regulation even if legal services are never “sought, offered, or performed.” Conduct outside of the courtroom is subject to the same restrictions as behavior in the courtroom. Accordingly, it cannot be said that Rule 8.4(h) focuses only incidentally on speech.

    Nor does Rule 8.4(h) qualify as a restriction on commercial speech. The First Amendment “protects vigorous advocacy” by attorneys, and the commercial speech doctrine cannot be used to “foreclose the exercise of constitutional rights by mere labels.” Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 429, 83 S. Ct. 328, 336, 9 L. Ed. 2d 405 (1963). A state may be able to place some limits on in-person for-profit solicitation, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 454 (1978), but it lacks the power to restrain attorney speech outside of those narrow confines. A presentation at a CLE event, or a remark at a dinner party cannot in any way be classified as commercial in nature. Moreover, recent Supreme Court decisions regarding commercial speech draw even the limited holding of Ohralik into serious doubt. See Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 167 (2015); Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011). Because Rule 8.4(h) “imposes a burden based on the content of speech and the identity of the speaker,” it is suspect even though it regulates the practice of law. Sorrell, 564 U.S. at 567. Proposed Rule 8.4(h) must further a compelling interest in a narrowly tailored manner. Given its extensive reach beyond the range of the bar’s regulatory interests, it is unlikely to satisfy that standard.

    Pacific Legal Foundation urges the Utah Supreme Court and the Judicial Council to reject Proposed Rule 8.4(h). While the goal of increasing civility in the profession is worthwhile, this Rule will chill constitutionally protected speech and raises serious First Amendment concerns.

    Sincerely,

    Ethan W. Blevins
    eblevins@pacificlegal.org
    Daniel M. Ortner
    dortner@pacificlegal.org
    Pacific Legal Foundation
    839 W. 3600 S.
    Bountiful, UT 84010
    http://www.pacificlegal.org