In 2016 the ABA Standing Committee on Ethics and Professional Responsibility revised Rule 8.4(g) of the Model Rules of Professional Conduct to add language that engaging in “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law” constitutes an ethical violation. Prior to that amendment, twenty-five jurisdictions had already included anti-discrimination and/or language prohibiting harassment to their respective Rules of Professional Conduct. Thirteen jurisdictions addressed the issues of discrimination or harassment in the comments to their Rules of Professional Conduct.

The revision has drawn criticism as states consider whether to adopt the new model rule. The generally stated reason why states are resisting the adoption of this new rule is concerns that the number of ethics complaints will increase. However, the states that adopted similar rules prior to the revision to Model Rule 8.4(g), do not report an associated increase in ethical complaints.

A new basis for opposing the language of revised Model Rule 8.4(g) has been raised in Texas. In a December 20, 2016 opinion, the Attorney General of Texas, Ken Paxton, is objecting to the rule on constitutional grounds.10 Paxton argued that Model Rule 8.4(g) is in violation of the First Amendment because the rule “would severely restrict attorneys’ ability to engage in meaningful debate on a range of important social and political issues,” and impinge upon attorneys’ ability to represent interests based on sincerely-held religious belief, or regarding social issues like sexual orientation and gender identity. Paxton also challenges Model Rule 8.4(g) on grounds of vagueness and overbreadth and concludes the adoption of the model rule would violate the Constitution.

It is unclear how restricting Model Rule 8.4(g) would be in practice. The comments to amended subsection (g) explain that knowledge is required; comment four defines “conduct related to the practice of law,” with a specific exclusion for conduct undertaken for promoting diversity. Rule 2.3 of the Model Code of Judicial Conduct has encompassed similar language guarding against bias and discrimination since 2007. 

Karuna Davé is an associate with Deutsch Kerrigan, LLP in New Orleans, Louisiana. As an attorney on the Commercial Litigation and Professional Liability teams, Karuna primarily defends clients against claims of legal and accounting malpractice. In addition to her professional liability practice, Karuna assists the firm in labor & employment and civil litigation matters.