In August of 2016, the ABA House of Delegates amended Model Rule 8.4 to add subsection (g), which provides that it is professional misconduct for a lawyer to:

Two comments relevant to subsection (g) were also added to the Rule:

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[T]he Texas Supreme Court has not adopted Model Rule 8.4(g), and it is not currently part of the Texas Rules. However, 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.

A court would likely conclude that Model Rule 8.4(g) infringes upon the free speech rights of members of the State Bar.

… Model Rule 8.4(g) would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues.

While decisions of the United States Supreme Court have concluded that an attorney’s free speech rights are circumscribed to some degree in the courtroom during a judicial proceeding and outside the courtroom when speaking about a pending case, Model Rule 8.4(g) extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is “related to the practice of law” [including, among other things,] … [“]participating in bar association, business or social activities in connection with the practice of law.[“] Given the broad nature of this rule, a court could apply it to an attorney’s participation in a continuing legal education panel discussion, authoring a law review article, or informal conversations at a bar association event.

One commentator [Prof. Ron Rotunda] has suggested, for example, that at a bar meeting dealing with proposals to curb police excessiveness, a lawyer’s statement, “Blue lives [i.e., police] matter, and we should be more concerned about black-on-black crime,” could be subject to discipline under Model Rule 8.4(g). In the same way, candid dialogues about illegal immigration, same-sex marriage, or restrictions on bathroom usage will likely involve discussions about national origin, sexual orientation, and gender identity. Model Rule 8.4(g) would subject many participants in such dialogue to discipline, and it will therefore suppress thoughtful and complete exchanges about these complex issues….

A court would likely conclude that Model Rule 8.4(g) infringes upon an attorney’s First Amendment right to free exercise of religion.

Model Rule 8.4(g) could also be applied to restrict an attorney’s religious liberty and prohibit an attorney from zealously representing faith-based groups. For example, in the same­ sex marriage context, the U.S. Supreme Court has emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” The Court has further encouraged “an open and searching debate” on the issue.

However, operation of Model Rule 8.4(g) would stifle such a debate within the legal community for fear of disciplinary reprimand and would likely result in some attorneys declining to represent clients involved in this issue for fear of disciplinary action. If an individual takes an action based on a sincerely-held religious belief and is sued for doing so, an attorney may be unwilling to represent that client in court for fear of being accused of discrimination under the rule. “[D]isciplinary rules governing the legal profession cannot punish activity protected by the First Amendment.” Given that Model Rule 8.4(g) attempts to do so, a court would likely conclude that it is unconstitutional.

A court would likely conclude that Model Rule 8.4(g) infringes upon an attorney’s right to freedom of association.

“[I]mplicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” “This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.” Contrary to this constitutionally protected right, however, Model Rule 8.4(g) could be applied to restrict an attorney’s freedom to associate with a number of political, social, or religious legal organizations.

The Rule applies to an attorney’s participation in “business or social activities in connection with the practice of law.” Many attorneys belong to faith-based legal organizations, such as a Christian Legal Society, a Jewish Legal Society, or a Muslim Legal Society, but Model Rule 8.4(g) could curtail such participation for fear of discipline. In addition, a number of other legal organizations advocate for specific political or social positions on issues related to race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. Were Texas to adopt Model Rule 8.4(g), it would likely inhibit attorneys’ participation in these organizations and could be applied to unduly restrict their freedom of association. ·

Because Model Rule 8.4(g) attempts to prohibit constitutionally protected activities, a court would likely conclude it is overbroad.

An overbroad statute “sweeps within its scope a wide range of both protected and non­ protected expressive activity.” … In the First Amendment context, a court will invalidate a statute as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” …

Like those examples discussed above, numerous scenarios exist of how the rule could be applied to significantly infringe on the First Amendment rights of all members of the State Bar. A statute “found to be overbroad may not be enforced at all, even against speech that could constitutionally be prohibited by a more narrowly drawn statute.” Because Model Rule 8.4(g) substantially restricts constitutionally permissible speech and the free exercise of religion, a court would likely conclude it is overbroad and therefore unenforceable.

As applied to specific circumstances, a court would likely also conclude that Model Rule 8.4(g) is void for vagueness.

… Model Rule 8.4(g) lacks clear meaning and is capable of infringing upon multiple constitutionally protected rights, and it is therefore likely to be found vague. In particular, the phrase “conduct related to the practice of law,” while defined to some extent by the comment, still lacks sufficient specificity to understand what conduct is included and therefore “has the potential to chill some protected expression” by not defining the prohibited conduct with clarity.

Also, the rule prohibits “discrimination” without clarifying whether it is limited to unlawful discrimination or extends to otherwise lawful conduct. It prohibits “harassment” without a clear definition to determine what conduct is or is not harassing. And it specifically protects “legitimate advice or advocacy consistent with these Rules” but does not provide any standard by which to determine what advice is or is not legitimate. Each of these unclear terms leave Model Rule 8.4(g) open to invalidation on vagueness grounds as applied to specific circumstances.

The Texas Rules of Disciplinary Conduct sufficiently address attorney misconduct to prohibit unlawful discrimination.

Multiple aspects of Model Rule 8.4(g) present serious constitutional concerns that would likely result in its invalidation by a court. The Texas Disciplinary Rules of Professional Conduct, on the other hand, already address issues of attorney discrimination through narrower language that provides better clarification about the conduct prescribed. Texas Disciplinary Rule of Professional Conduct 5.08 provides:

(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity [emphasis added –EV].

(b) Paragraph (a) does not apply to a lawyer’s decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as “confidential information” under these Rules. It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:

is necessary in order to address any substantive or procedural issues raised in the proceeding; and

is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.

Model Rule 8.4(g) is therefore unnecessary to protect against prohibited discrimination in this State, and were it to be adopted, a court would likely invalidate it as unconstitutional.

Summary

A court would likely conclude that the American Bar Association’s Model Rule of Professional Conduct 8.4(g), if adopted in Texas, would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the State Bar. In addition, a court would likely conclude that it was overbroad and void for vagueness.