If Arkansas adopted ABA Model Rule 8.4(g), the rule disciplining lawyers for harassment or discrimination in conduct related to the practice of law, would it violate the First Amendment or the Religious Freedom Restoration Act?

Plain-English summary

The American Bar Association's Model Rule 8.4(g) makes it "professional misconduct" for a lawyer to engage in harassment or discrimination based on 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." A lawyer found in violation can be reprimanded, suspended, or disbarred.

State bars have decided whether to adopt the rule, modify it, or reject it outright. Most states have not adopted it, and a federal court in Pennsylvania enjoined Pennsylvania's adopted version on First Amendment grounds in Greenberg v. Haggerty.

Senator Ballinger asked Attorney General Rutledge two questions:

1. If Arkansas adopted Model Rule 8.4(g), would it violate any Arkansas attorney's statutory or constitutional rights?
2. Could it violate Arkansas's Religious Freedom Restoration Act?

The AG answered yes to both. The opinion catalogs four constitutional problems with the rule: free speech (overbreadth and viewpoint discrimination), due process (vagueness), expressive association, and free exercise of religion. It then concludes that disciplinary proceedings carry the force of law and could substantially burden a lawyer's religious exercise in violation of RFRA.

What this means for you

Arkansas attorneys

Arkansas has not adopted ABA Model Rule 8.4(g). Arkansas Rule 8.4(d) prohibits "conduct that is prejudicial to the administration of justice," and Comment 3 to that rule covers "discriminatory conduct committed by a lawyer while performing duties in connection with the practice of law." That language is narrower than the ABA Model Rule on multiple dimensions. The AG's opinion is one piece of input that the Arkansas Supreme Court (which has rule-making authority over attorney conduct under Amendment 28) can consider if the issue arises.

Bar associations and rule-makers in other states

The AG's opinion is a comprehensive critique of Model Rule 8.4(g) drawn from federal First Amendment doctrine. It marshals Tennessee, Texas, and Louisiana AG opinions reaching similar conclusions, plus Greenberg v. Haggerty enjoining Pennsylvania's version. State bars considering adoption should expect similar challenges.

Religious organizations and lawyers active in church or advocacy work

The opinion's expressive-association analysis says service on the board of a religious organization, participation in groups like the Christian Legal Society, or speaking publicly about how religious beliefs shape one's legal practice could be deemed "related to the practice of law" under Model Rule 8.4(g). The opinion treats these as protected activities under the First Amendment and Arkansas's RFRA.

Lawyers worried about discipline for unintentional speech

The opinion repeatedly emphasizes that 8.4(g)'s "knows or reasonably should know" formulation, plus its prohibition of conduct merely "manifesting bias or prejudice," chills protected speech because attorneys cannot reliably predict what will trigger discipline. Vagueness like that, the opinion says, "operates to inhibit the exercise of those freedoms."

Common questions

Did Arkansas actually adopt ABA Model Rule 8.4(g)?

No. Arkansas has not adopted Model Rule 8.4(g). Attorney conduct in Arkansas is governed by the Arkansas Rules of Professional Conduct, including the more limited Rule 8.4(d) "conduct prejudicial to the administration of justice" provision and its Comment 3.

Would the AG's opinion bind the Arkansas Supreme Court if it considered adopting the rule?

No. AG opinions are persuasive authority. The Arkansas Supreme Court has rule-making authority over attorneys under Amendment 28 and would make its own decision. The opinion is one input.

What's the core First Amendment problem?

Two things, per the AG. First, viewpoint discrimination: the rule prohibits expression of certain views (those deemed "derogatory or demeaning" or that "manifest bias or prejudice"), while exempting speech that "promote[s] diversity and inclusion." That singles out a viewpoint for protection. Second, overbreadth: "related to the practice of law" reaches business and social activities far removed from courtroom advocacy or client representation, sweeping in a vast amount of protected speech.

What's the due process problem?

Vagueness. Disciplinary proceedings are quasi-criminal under In re Ruffalo, so due process protections apply. The opinion says terms like "harassment," "discrimination," "harmful," "derogatory," "demeaning," "knows or reasonably should know," and "related to the practice of law" lack settled definitions. A lawyer cannot tell in advance what will trigger discipline.

How does the rule affect religious lawyers?

The AG argued that lawyers active in religious organizations, who advocate traditional views on contested moral questions, could face discipline for activities that the First Amendment protects. The opinion cites Obergefell, Masterpiece Cakeshop, and Church of the Lukumi Babalu Aye for the principle that government cannot base regulations on hostility to religious viewpoints.

Where do other states stand?

The opinion notes that "the vast majority of states to consider adopting ABA Model Rule 8.4(g) have not done so" and cites Tennessee, Texas, and Louisiana AG opinions reaching the same conclusion. Greenberg v. Haggerty enjoined Pennsylvania's version of the rule on First Amendment grounds.

Background and statutory framework

Amendment 28 of the Arkansas Constitution gives the Arkansas Supreme Court power to make rules regulating attorney conduct. Arkansas Rule 8.4(d), the current discriminatory-conduct rule, prohibits "conduct that is prejudicial to the administration of justice," and Comment 3 narrows that to "discriminatory conduct committed by a lawyer while performing duties in connection with the practice of law."

ABA Model Rule 8.4(g), adopted by the ABA House of Delegates in 2016, is broader on five dimensions identified in the opinion: it reaches conduct "related to" rather than "in connection with" the practice of law; it lowers the threshold from "prejudicial to the administration of justice" to "harmful" conduct; it adds "harassment" as a separate category; it expands the protected classes; and it does not require that the conduct otherwise violate antidiscrimination law.

Arkansas's Religious Freedom Restoration Act, Ark. Code Ann. § 16-123-401 et seq., prohibits substantial burdens on religious exercise unless the burden serves a compelling government interest by the least restrictive means. The AG concluded RFRA would apply to attorney discipline because rules of professional conduct carry the force of law in disciplinary proceedings.

Citations

• ABA Model Rule of Professional Conduct 8.4(g)
• Ark. Const. amend. 28 (Supreme Court rule-making authority)
• Ark. Const. art. 2, § 6 (free speech)
• Ark. Const. art. 2, § 24 (freedom of religion)
• Ark. R. Pro. Conduct 8.4(d) and Comment 3
• Ark. R. Pro. Conduct 8.5(a)
• Ark. Code Ann. §§ 16-123-401 et seq. (Arkansas RFRA)
• Ark. Code Ann. § 16-123-404(a) (RFRA standard)
• Ark. Code Ann. § 16-123-107(a) (Arkansas Civil Rights Act)
• Greenberg v. Haggerty, 491 F. Supp. 3d 12 (E.D. Pa. 2020)
• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
• Matal v. Tam, 137 S. Ct. 1744 (2017)
• Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018)
• Obergefell v. Hodges, 576 U.S. 644 (2015)
• Masterpiece Cakeshop v. Colo. C.R. Comm'n, 138 S. Ct. 1719 (2018)
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
• In re Ruffalo, 390 U.S. 544 (1968)
• Tennessee Att'y Gen. Op. No. 18-11 (March 16, 2018)
• Texas Att'y Gen. Op. No. KP-0123 (Dec. 20, 2016)
• Louisiana Att'y Gen. Op. No. 17-0114 (September 8, 2017)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2020-055
July 14, 2021
The Honorable Bob Ballinger
State Senator
508 Dr. Spurlin Circle
Berryville, AR 72616-3825

Dear Senator Ballinger:

This letter is in response to your request for an opinion regarding the constitutionality of the American Bar Association's ("ABA") Model Rule of Professional Conduct 8.4(g). That Rule provides:

It is professional misconduct for a lawyer to: ... (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.

In light of this Rule and its Comments, you ask the following questions:

1) If adopted in Arkansas, could ABA Model Rule 8.4(g) constitute a violation of an Arkansas attorney's statutory or constitutional rights under any applicable statute or constitutional provision?

2) Could ABA Model Rule 8.4(g) be interpreted as violating our Religious Freedom Restoration Act (RFRA)?

RESPONSE

The answer to both your questions is yes. First, if adopted in Arkansas, ABA Model Rule 8.4(g) could infringe an Arkansas attorney's rights to free speech, free exercise, expressive association, and due process. Second, it could also substantially burden an attorney's exercise of religion and thereby violate Arkansas's Religious Freedom Restoration Act.

DISCUSSION

The vast majority of states to consider adopting ABA Model Rule 8.4(g) have not done so, and that Rule has provoked a great deal of judicial and scholarly criticism. In Arkansas, as elsewhere, the principal difficulty is the Rule's considerable expansion of what constitutes professional misconduct.

Amendment 28 to the Arkansas Constitution empowers the Arkansas Supreme Court to make rules regulating attorneys' professional conduct. Accordingly, the Court has approved the Arkansas Rules of Professional Conduct. All persons admitted to practice law in the State of Arkansas must swear a solemn oath to abide by those Rules and are subject to disciplinary authority. "Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process." Discipline may include probation, non-public warning, public caution, reprimand, suspension, and disbarment.

Arkansas Rule 8.4(d) provides that it is "professional misconduct" for a lawyer to "engage in conduct that is prejudicial to the administration of justice." Comment 3 to that Rule explains that subdivision (d) proscribes "discriminatory conduct committed by a lawyer while performing duties in connection with the practice of law," saliently including "discriminatory conduct ... directed toward litigants, jurors, witnesses, other lawyers, or the court."

Adopting ABA Model Rule 8.4(g) would expand the scope of professional misconduct in a variety of ways. First, the Revised Resolution and Report to the ABA House of Delegates explains that the Model Rule is designed to expand the Rules' regulatory reach beyond "situations where the lawyer is representing clients" to conduct and expression that is merely "related to the practice of law." Thus, the Model Rule's Comment 4 explains that it regulates not only lawyers' conduct in "representing clients" and "interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law," but also their conduct in "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." In short, ABA Model Rule 8.4(g) is written expansively to reach all "conduct lawyers are permitted or required to engage in because of their work as a lawyer," which "includes activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm or in connection with their practice of law."

Second, ABA Model Rule 8.4(g) markedly lowers the threshold for conduct to qualify as "professional misconduct." Whereas the Arkansas Rules prohibit discriminatory conduct that is "prejudicial to the administration of justice," the Model Rule's Comment 3 explains that merely "harmful" conduct that "manifests bias or prejudice towards others" qualifies as prohibited discrimination.

Third, ABA Model Rule 8.4(g) introduces the concept of "harassment" as prohibited conduct distinct from "discrimination." Comment 3 explains that "harassment" includes not only "sexual harassment" but also any conduct that someone believes is "derogatory or demeaning."

Fourth, prohibited conduct under Comment 3 to existing Arkansas Rule 8.4 includes discrimination on the basis of "race, sex, religion, national origin, or any other similar factor[]" that "is not relevant to the proof of any legal or factual issue in dispute." Adopting ABA Model Rule 8.4(g) would eliminate the prohibition's connection to the context of a legal proceeding, move the list of prohibited bases to its blackletter text, and expand those bases to include "ethnicity, disability, age, sexual orientation, gender identity, marital status[,] [and] socioeconomic status."

Fifth and finally, ABA Model Rule 8.4(g) contains no requirement that conduct must be otherwise prohibited by law to qualify as "discrimination" or "harassment." It forbids conduct that would not be actionable under federal or state antidiscrimination laws in at least three respects. The Rule defines prohibited conduct with respect to classes not contained in federal or state antidiscrimination statutes. Further, unlike federal law prohibiting workplace discrimination, the Rule reaches conduct that is neither "severe [n]or pervasive." It also incorporates a negligence standard, forbidding not only intentional conduct or expression but also any conduct that an attorney "reasonably should know" is prohibited.

Question 1: If adopted in Arkansas, could ABA Model Rule 8.4(g) constitute a violation of an Arkansas attorney's statutory or constitutional rights under any applicable statute or constitutional provision?

If adopted in Arkansas, ABA Model Rule 8.4(g) could infringe an Arkansas attorney's rights to free speech, free exercise, expressive association, and due process under the First and Fourteenth Amendments and the Arkansas Constitution.

a. Free Speech and Overbreadth

"[D]isciplinary rules governing the legal profession cannot punish activity protected by the First Amendment[.]" Comment 3 to ABA Model Rule 8.4(g) explains that the Rule reaches "verbal ... conduct." The Rule thus implicates the First Amendment, which protects speech and inherently expressive conduct from content-based regulations that are not narrowly tailored to further a compelling government interest. Further, because the Rule's definition of "professional misconduct" prohibits the expression of certain viewpoints, those deemed to discriminate or harass on the basis of protected classes, strict scrutiny applies.

Other than a few narrow, historical exceptions (namely, for obscenity, libel, incitement, and fighting words), the First Amendment robustly protects the expression of disfavored viewpoints. "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." In fact, "the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful." There is, therefore, "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." "Speech 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.'"

ABA Model Rule 8.4(g) discriminates on the basis of viewpoint because it prohibits the expression only of views considered "derogatory or demeaning" or "harmful" and "manifest[ing] bias or prejudice." Further, although the Rule is stated as a categorical prohibition of discrimination, Comment 4 explains that the Rule selectively forbids discrimination based on viewpoint: It provides an exemption for lawyers to discriminate on the basis of the protected classes in favor of "promot[ing] diversity and inclusion." The Rule, therefore, impermissibly "mandate[s] positivity" by silencing perspectives that assign lesser weight to the goals of "diversity and inclusion" than to other incompatible or competing values. Such "attempts to suppress" particular points of view "are presumptively unconstitutional," and because the Rule targets "particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant."

Further, even if it were assumed that government has a compelling interest in regulating the practice of law, ABA Model Rule 8.4(g) is not narrowly tailored because it reaches beyond speech uttered in the practice of law to speech that is in any way "related to the practice of law." The Rule fails the tailoring requirement because business and social activities not explicitly associated with an attorney's practice of law are still "related to the practice of law" in various ways, for example, as opportunities for business development. Indeed, "statements made by an attorney as a political candidate or a member of the General Assembly could be deemed sufficiently 'related to the practice of law' to fall within the scope of Proposed Rule 8.4(g). So too could statements made by an attorney in his or her capacity as a member of the board of a nonprofit or religious organization." Indeed, relations "stop nowhere" because "everything is related to everything else." Accordingly, the Rule regulates a vast array of speech, subjecting attorneys to professional discipline for speech that has only the most insubstantial, indirect, or coincidental relationship to the legal profession.

Finally, "[e]ven if the [disciplinary authority] may ultimately decide not to impose disciplinary sanctions on the basis of such speech, or a court may ultimately invalidate on First Amendment grounds any sanction imposed, the fact that the rule on its face would apply to speech of that nature would undoubtedly chill attorneys from engaging in speech in the first place." This sweeping threat would influence attorneys to "choose not to speak because of uncertainty whether [their] claim of privilege would prevail if challenged." As such, the Rule is unconstitutionally overbroad and, therefore, subject to facial invalidation under the First Amendment.

b. Due Process

Disciplinary proceedings are "quasi-criminal" in nature and due-process protections apply. Even if ABA Model Rule 8.4(g) would not reach the totality of an attorney's conduct, it is still constitutionally infirm under the Due Process Clause because the scope of conduct "related to the practice of law" is impermissibly vague. The Rule thus "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."

The Rule's other terms suffer from vagueness as well. For example, determining whether conduct "is harassment or discrimination on the basis of" any of the eleven categories listed in ABA Model Rule 8.4(g), and hence, whether an attorney "knows or reasonably should know" that's what their conduct is, "would require speculating about whether someone might view that speech as 'harmful' or 'derogatory or demeaning.'" But these value-laden terms lack settled definitions and are sharply contested. Thus, "[f]ar from providing explicit standards, the definitions [of discrimination and harassment] in Comment 3 further complicate and muddle the meanings of the words ... such that a person of common intelligence does not know what is prohibited." Troubling questions arise:

Is an attorney who participates in a debate on income inequality engaging in discrimination based on socioeconomic status when he makes a negative remark about the 'one percent'? How about an attorney who comments at a CLE on immigration law that illegal immigration is draining public resources? Is that attorney discriminating on the basis of national origin?

The United States Supreme Court's explanation of the shortcomings of an ordinance that prohibits "annoying" conduct applies equally to ABA Model Rule 8.4(g)'s prohibition of conduct that is "harmful," "derogatory," or "demeaning": "Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." The Rule's vagueness thus "creates a substantial risk that determinations about whether expression is prohibited will be guided by the 'personal predilections' of enforcement authorities rather than the text of the rule." And where, as here, "a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked."

Finally, ABA Model Rule 8.4(g) purports to delimit what counts as "professional misconduct" while not prohibiting conduct that is professionally acceptable. Thus, the Rule provides that "[t]his paragraph does not preclude legitimate advice or advocacy consistent with these Rules." But that self-referential language does not helpfully identify the bounds of "professional misconduct." Merely referring in the abstract to conduct that is "legitimate" or "consistent with the[] Rules" provides no discernible standard when the legitimacy or consistency of particular conduct is precisely the issue in question. The issue necessarily reasserts itself: What counts as "professional misconduct" under ABA Model Rule 8.4(g)? Because it is unclear, the Rule is unconstitutionally vague under the Due Process Clause.

c. Expressive Association and Free Exercise

By its terms, ABA Model Rule 8.4(g) prohibits all non-exempt expressive conduct that is incompatible with the Rule's blackletter nondiscrimination principle even if that expression is undertaken to promote some other value that is worthy of approval. Thus, the Rule prohibits even non-invidious discrimination that promotes values like those protected by the First Amendment rights to free exercise and expressive association. "Indeed, by expressly prohibiting harassment or discrimination based on 'sexual orientation' and 'gender identity,' the proposed rule appears designed to target those holding traditional views on controversial matters such as sexuality and gender, views that are often 'based on decent and honorable religious or philosophical premises.'" True, some may find such views and accompanying expressive conduct offensive. But "it is not, as the [United States Supreme] Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive." And States have a "duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint," whether that hostility is "masked" or "overt."

Further, the Constitution protects the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." But given ABA Model Rule 8.4(g)'s expansive application to "business or social activities in connection with the practice of law," it is difficult to see how groups or networking events designed to benefit attorneys who are, for example, young, single, women, Hispanic, gay, or Christian, could escape scrutiny as discrimination on the basis of age, marital status, sex, ethnicity, sexual orientation, or religion.

Freedom of association "is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas." Legal and advocacy organizations promote various, frequently controversial, political or social positions bearing on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status and socioeconomic status. Membership in, or participation in a program sponsored by, an organization that promotes views some deem "harmful," "derogatory," or "demeaning" could provide grounds for attorney discipline, in violation of the First Amendment. And "serving as a member of the board of a religious organization, participating in groups such as the Christian Legal Society, or even speaking about how one's religious beliefs influence one's work as an attorney" may well be deemed "related to the practice of law." Therefore, ABA Model Rule 8.4(g) could be applied to infringe an attorney's rights to free exercise and expressive association.

Last, it cannot be simply assumed that enforcement authorities will resolve the Rule's language "in favor of adequate protection of First Amendment rights." Therefore, ABA Model Rule 8.4(g) conflicts with the First Amendment rights to free exercise and expressive association.

Question 2: Could ABA Model Rule 8.4(g) be interpreted as violating our Religious Freedom Restoration Act (RFRA)?

Arkansas's Religious Freedom Restoration Act (RFRA) prohibits the government from "substantially burden[ing] a person's exercise of religion" unless "it demonstrates that application of the burden to the person is: (1) In furtherance of a compelling governmental interest; and (2) The least restrictive means of furthering that compelling governmental interest."

RFRA "applies to all state law, and the implementation of state law, whether statutory or otherwise." Although the legal status of rules of professional conduct generally remains "a matter of controversy," they carry the force of law in disciplinary proceedings. Therefore, RFRA's protections would extend to attorneys whose exercise of religion is substantially burdened by such proceedings.

Given ABA Model Rule 8.4(g)'s expansive character and the many problems identified above, the Rule could be applied to substantially burden attorneys' exercise of religion by prohibiting expression that RFRA protects. An attorney "whose religious exercise has been burdened in violation of [RFRA]" could "assert that violation as a claim or defense in a judicial proceeding."

Sincerely,

LESLIE RUTLEDGE
Attorney General