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Letter to Alaska Bar Association Department of Law OFFICE OF THE ATTORNEY GENERAL 1031 West Fourth Avenue, Suite 200 Anchorage, Alaska 99501 Main: (907) 269-5100 Fax: (907) 269-5110 August 9, 2019 Board of Governors c/o Robert Stone, President Alaska Bar Association P.O. Box 100279 Anchorage, AK 99510-0279 Re: Proposed Rule of Professional Conduct 8.4(f) Dear Board of Governors: The Alaska Bar Association has solicited comments on an amendment to the Alaska Rules of Professional Conduct. Proposed Rule of Professional Conduct 8.4(f) establishes a new category of professional misconduct. Lawyers who engage in conduct that they know or reasonably should know is harassment or discrimination on the basis of certain identity groups while practicing law, running a firm, or participating in activities connected to legal practice, can be sanctioned. With this rule, the Bar Association intends to promote professionalism, respectfulness, and inclusiveness in the legal profession. Yet the rule wanders far afield of those goals. Parts of the Proposed Rule laudably promote professionalism and respect by attorneys to all individuals regardless of personal traits or characteristics. However, by regulating the expression of ideas and religious practices, Proposed Rule 8.4(f) burdens attorneys’ fundamental constitutional rights and threatens the core of what it means to be an attorney: protecting the rule of law, including the United States Constitution, and advocating zealously for clients. The Proposed Rule would allow the Bar Association to sanction a broad range of expression protected by the United States and Alaska constitutions. Consider the following examples, all of which could be sanctioned under the proposed rule. A devout Catholic attorney, who holds a sincere religious conviction regarding the importance of traditional marriage and parenting, politely declines to assist a same-sex couple with an adoption and refers them to a colleague without such religious conviction. An attorney in a child custody hearing involving same-sex parents articulates her client’s concern about Board of Governors August 9, 2019 Re: Proposed Rule of Professional Conduct 8.4(f) Page 2 of 17 traditional family values in a way that, in the Bar disciplinary board’s view, manifests bias. Or an attorney makes a comment about traditional family values to her expert witness while standing in line at Starbucks before a hearing, within earshot of opposing counsel. Or, the same comment is made by an attorney to a colleague working on a pro bono matter for a same-sex couple who wants to adopt, over lunch to a group of summer associates, at a Bar Association panel regarding the future of same-sex marriage, at a cocktail lounge during the annual Bar convention, at a Catholic Lawyers Guild meeting, or at home, to a neighbor who needs advice for his divorce. The only area of lawyerly life that Proposed Rule 8.4(f) does not touch is the private unexpressed mind. This letter offers a brief history of Rule 8.4(f) before explaining its constitutional infirmities. Applications of Rule 8.4(f) will violate First Amendment freedoms, including freedom of speech, free exercise of religion, and freedom of association. The protected activity that Rule 8.4(f) regulates is substantial, inviting courts to invalidate the rule as overbroad. Rule 8.4(f) is also impermissibly vague because it lacks the specificity that would prevent discriminatory enforcement and put attorneys on notice about what types of conduct can be sanctioned. The Alaska Bar Association should not recommend and the Alaska Supreme Court should not adopt a conduct rule that forces lawyers—members of a profession devoted to vigorous debate and the airing of difficult issues—to obey an orthodoxy. As a policy it is unwise, and as a law it is unconstitutional. Instead, the Bar Association should expressly limit the scope of Proposed Rule 8.4(f) to prohibiting illegal conduct under federal and state law, which can be regulated without offending the Constitution. While the goal of encouraging professionalism and mutual respect in the practice of law is worthy, the Proposed Rule sweeps far broader than the Constitution permits. BACKGROUND Since the 1970s, the legal profession has become increasingly diverse. As many women as men now attend law schools, and more than a quarter of law students belong to a minority group.1 Changing demographics and cultural norms have raised awareness about sexual harassment and the underrepresentation of minorities at law firms.2 1 Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for Courts Considering Model Rule 8.4(g), 30 Georgetown J. Legal Ethics 195, 197–98 (2017). 2 See Ashley Badesch, Lady Justice: The Ethical Considerations and Impacts of Gender-Bias and Sexual Harassment in the Legal Profession on Equal Access to Justice for Women, 31 Georgetown J. Legal Ethics 497, 503 (2018); Claudia E. Haupt, Board of Governors August 9, 2019 Re: Proposed Rule of Professional Conduct 8.4(f) Page 3 of 17 In August 2016, the American Bar Association amended the Model Rules of Professional Conduct to incorporate harassment and discrimination within the category of professional misconduct. Rule 8.4(g) makes it misconduct for a lawyer to “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.”3 Rule 8.4(g) neither prevents lawyers from accepting, declining, nor withdrawing from representation in compliance with Rule 1.16 nor “preclude[s] legitimate advice or advocacy.”4 Three comments clarify the meaning of “discrimination” and “harassment,”5 establish the scope of “conduct related to the practice of law,”6 and shield “diversity and inclusion” programs,7 the representation of “underserved populations,”8 and the exercise of peremptory strikes.9 States did not respond enthusiastically. Attorneys General in Texas, South Carolina, Louisiana, and Tennessee published opinions identifying constitutional infirmities in Rule 8.4(g) and cautioning their Supreme Courts against adopting the rule.10 The North Dakota Joint Committee on Attorney Standards recommended that the state retain the existing “prejudicial to the administration of justice” rule, which already prohibited knowing manifestations of bias or prejudice except as part of legitimate advocacy.11 In Montana, a joint resolution of the state legislature warned the state Supreme Court that Rule 8.4(g) violated federal and state constitutions.12 After considering Rule 8.4(g), Nevada did not change its misconduct rules13 and Maine chose Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g), 19 U. Pa. J. Const. L. Online 1, 4 (2017). 3 Annual Model Rules of Prof’l Conduct r. 8.4(g) (Am. Bar Ass’n 2019). 4 Id. 5 Id. at r 8.4 cmt. 3. 6 Id. at r. 8.4 cmt. 4. 7 Id. 8 Id. at r. 8.4 cmt. 5. 9 Id. 10 Michael McGinniss, Expressing Conscience with Candor: Saint Thomas More and First Freedoms in the Legal Profession, 42 Harv. J. L. & Pub. Pol’y. 173, 215 (2019). 11 Id. at 217. 12 Id. at 215. 13 Id. at 214. Board of Governors August 9, 2019 Re: Proposed Rule of Professional Conduct 8.4(f) Page 4 of 17 to prohibit only unlawful harassment or discrimination.14 Only one state, Vermont, has adopted the rule “substantially as written.”15 On June 13, 2019, the Alaska Bar Association released a “Proposed Amendment to ARPC 8.4(f)” to its members via email. Proposed Rule 8.4(f) reads: It is professional misconduct for a lawyer to: (f) 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 while: (1) representing clients, (2) interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law, (3) operating or managing a law firm or law practice, or (4) participating in bar association, business or social activities in connection with 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. The Bar Association later published in the April-June issue of the Alaska Bar Rag the text of the Proposed Rule that included a comment. The comment to the Proposed Rule states that “discrimination includes harmful verbal or physical conduct that manifests bias or prejudice to others based on perceived membership in one or more of the groups listed in paragraph (f).” The comment further states that “the substantive laws of anti-discrimination and anti-harassment statutes and case law provide guidance to the application of paragraph (f).” The comment also suggested some limitations on the scope of the Proposed Rule: “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.” The comment also stated that a lawyer does not violate the Proposed Rule “by limiting the scope or subject matter of the lawyer’s practice to members of underserved populations in accordance with these Rules and other law.” 14 Id. 15 Id. at 213 Board of Governors August 9, 2019 Re: Proposed Rule of Professional Conduct 8.4(f) Page 5 of 17 Finally, the comment states that “[a] lawyer’s representation of a client does not constitute an endorsement of the client’s views or activities,” citing Rule of Professional Conduct 1.2(b).
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