Eugene Volokh Criticizes ABA's Speech Code for Lawyers

Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law, has published a video criticizing Model Rule of Professional Conduct 8.4(g), adopted by the American Bar Association last year. The Rule exposes lawyers to sanctions for professional misconduct if they: 

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Volokh blogged extensively about the Rule in 2016, shortly after it was passed, at the Volokh Conspiracy blog:

This also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself has potential First Amendment problems, as I’ve argued and as some courts have recognized (though others have disagreed); see, for instance, the recent “Don’t Tread on Me” controversy. But in most states, it doesn’t include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn’t cover social activities at which co-workers aren’t present; but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.

Hostile-work-environment harassment law is also often defended (though in my view that defense is inadequate) on the grounds that it’s limited to speech that is so “severe or pervasive” that it creates an “offensive work environment.” This proposed rule conspicuously omits any such limitation. Though the provision that “anti-harassment . . . case law may guide application of paragraph (g)” might be seen as implicitly incorporating a “severe or pervasive” requirement, that’s not at all clear: That provision says only that the anti-harassment case law “may guide” the interpretation of the rule, and in any event the language of paragraph (g) seems to cover any “harmful verbal . . . conduct,” including isolated statements.

Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of.

Volokh's concerns were echoed by Josh Blackman in November:

As I explained in my (rejected) proposal to the AALS Diversity Panel, this rule poses serious threats to academic freedom and law school pedagogy. The response to my criticism has been, generally, trust the disciplinary committees to enforce this law consistently with the First Amendment.

Blackman also offered video of a debate between Volokh and a supporter of the new rule, in which Volokh distilled his concerns:

During the Rosenkranz Debate, Professors Eugene Volokh and Deborah Rhode discussed Rule 8.4. At 48:35, moderator Judge Elrod asked:

In our own profession, we have had increased regulation of harassing speech and conduct in the ABA Model Rule 8.4. Is that a narrowly tailored way to address an issue in our profession?

Volokh, to some applause, replied “No.” He offered this hypothetical (by my rough transcription):

If the Federalist Society were to put on a CLE debate, which was related to the practice of law . . .  and a lawyer spoke out and said “I am against same-sex marriage because I thinks homosexuality is wrong, and the [Supreme] Court was wrong to accept that.” Under the proposed rule, someone may file a complaint. Maybe the Bar would find some way of dismissing that. But . . . it could find this is indeed harassment. . . . It is not clear if Rule 8.4 requires severity or pervasiveness. Once you accept the notion that it is okay to impose these viewpoint based restrictions on supposedly bad speech in the employment context, it’s easy enough to say that [the rules apply to] social and bar functions related to the practice of law, or even conservations over dinner at a law-related function. This is deliberate on the part of the bar . . . This is deliberately an attempt to suppress particular derogatory views in a wide-range of conduct, expressly including social and bar-association activities. They are getting exactly what they are intending. They are intending to suppress particular views in these kinds of debates.

While the ABA is a private organization with voluntary membership, its Model Rules form the basis of the rules of professional conduct for lawyers in most states and are often adopted with little or no discussion or consideration. ​New Hampshire and Delaware have both thus far resisted adopting Rule 8.4(g), but it has been adopted in such jurisdictions as New York.