Josh Blackman

Associate Professor
South Texas College of Law Houston
1303 San Jacinto Street
Houston, TX 77002
JBlackman@stcl.edu

Richard P. Lemmler, Jr.

Ethics Counsel
Louisiana State Bar Association
601 St. Charles Ave.
New Orleans, LA 70130

Attn: Rule 8.4(g) Subcommittee Recommendation

August 18, 2017

Dear Mr. Lemmer:

I write in response to the Louisiana State Bar Association’s request for written comments concerning ABA Model Rule
8.4(g). I am a constitutional law professor at the South Texas College of Law in Houston. I recently published an article
about Model Rule 8.4(g), titled Reply: A Pause for State Courts Considering Model Rule 8.4(g), The First Amendment and
“Conduct Related to the Practice of Law,” in Volume 30 of the GEORGETOWN JOURNAL OF LEGAL ETHICS. For your
convenience, I have attached a copy of the article, which can also be downloaded at https://ssrn.com/abstract=2888204.

The Subcommittee did not suggest adopting ABA Model Rule 8.4(g) in its entirety. Instead, it proposed adopting it as a
new Rule 8.4(h) with several modifications. These changes are positive steps, though I propose several additional
modifications to remove any doubts under the First Amendment. At the end of this letter, I include a proposed red-line.

First, whereas the ABA’s rule concerns “conduct related to the practice of law,” the recommended rule concerns “conduct
in connection with the practice of law.” The subcommittee noted that this modification “clearly limits application of the
rule to conduct of a lawyer.” With respect, this is a distinction without a difference. I see no linguistic difference between
“related to the practice of law” and “in connection with the practice of law.” These phrases have the same meaning.

Over the past two decades, nearly three dozen jurisdictions have amended their local version of Rule 8.4 to prohibit
discrimination, harassment, or other forms of bias against specifically defined groups. With few exceptions, these rules only
govern conduct within the three heads of conduct reached by Rule 8.4(a)–(f). First, the narrowest category regulated bias
during the representation of a client or in the practice of law. This standard is set by fifteen states in their rules, and ten
states in their comments. Second, a far broader standard regulates bias that implicates a lawyer’s fitness to practice law,
whether or not it occurs in the practice of law. Only two states impose this standard in their rules. Third, the broadest, most
nebulous standard at issue prohibits bias that would prejudice the administration of justice. This standard, which can reach
conduct entirely outside the client-lawyer relationship or the practice of law, is imposed by seven states.

Three jurisdictions have adopted far broader scopes to their anti-bias provisions. First, Indiana regulates such misconduct
when “engage[d] . . . in a professional capacity.” Second and third, Washington state and Wisconsin both regulate such
misconduct that is committed “in connection with the lawyer’s professional activities.” None of these rules define
“professional capacity” or “professional activities.” Yet, these three provisions still have a concrete nexus to delivering
legal services. They do not purport to reach “social activities,” such as bar-sponsored dinners that are merely “related to
the practice of law,” or in this case, “in connection with the practice of law.” None of these jurisdictions provide a
precedent for the ABA Model Rule 8.4(g) or Louisiana’s proposed Rule 8.4(h). To that end, I recommend changing
“conduct in connection with the practice of law” to “conduct that implicates a lawyer’s fitness to practice law.”

Second, whereas the ABA’s Model Rule prohibits “harassment or discrimination,” the recommended rule prohibits
“discrimination prohibited by law.” The former rule defines “harassment” to include “derogatory or demeaning verbal . . .
conduct.” This provision raises distinct Free Speech concerns. As then-Judge Alito observed, there is no “categorical
harassment exception” to the First Amendment.1 The Subcommittee’s modification is an important one, as it omits the
phrase “harassment,” but two additional steps can be taken to remove all constitutional doubts. First, a comment should be
added to clarify that this rule does not apply to “conduct protected by the First Amendment.” Indeed, such a comment was
included in an earlier draft of Model Rule 8.4(g), but was removed later in the process.2 Second, to prevent isolated incidents
from giving rise to liability—such as from remarks made during a lecture at a CLE presentation or bar-function—the rule
should clarify that discrimination must be “severe or pervasive.”

To avoid the chilling, and potential infringement, of protected free speech, the Louisiana State Bar Association should
consider adopting the proposed Rule 8.4(h) with the suggestions in this red-line:

“...It is professional misconduct for a lawyer to:...(h) engage in conduct in connection with the practice of that
implicates a lawyer’s fitness to practice law, that the lawyer knows or reasonably should know involves severe
or pervasive discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation,
national origin, marital status, or disability. This Rule does not prohibit legitimate advocacy when race, color,
religion, age, gender, sexual orientation, national origin, marital status, or disability are issues, nor does it limit
the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”

Comment 1: This Rule does not apply to conduct protected by the First Amendment, as a lawyer does
retain a “private sphere” where personal opinion, freedom of association, religious expression, and political
speech is protected by the First Amendment and not subject to this rule. For example, this Rule does not
apply to speech on matters of public concern at bar association functions, continuing legal education
classes, law school classes, and other similar forums.

It would be my pleasure to provide any further insights to inform your deliberations.

Sincerely,

Josh Blackman
Associate Professor
South Texas College of Law Houston

1
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3dCir. 2001).
2
STANDING COMM. ON ETHICS & PROF’L RESPONSIBILITY, AM. BAR ASS’N, NOTICE OF PUBLIC HEARING 5, 14
(2015), http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/
rule_8_4_amendments_12_22_2015.pdf [https://perma.cc/US3Z-F9BJ] (noting that a “lawyer does retain a ‘private sphere’ where
personal opinion, freedom of association, religious expression, and political speech is protected by the First Amendment and not
subject to the Rule.”).