76. ABA Model Rule 8.4(g): Bad Idea or a Threat to Liberty?

In August 2016, the American Bar Association, seeking to impose a "cultural shift" on the legal profession and change how lawyers think about gender and marriage, amended Model Rule of Professional Responsibility 8.4. The rule has no legal force-- it simply suggests a "model" from the ABA for states to follow in their ethics codes-- until a particular state adopts it. Yet the Model Rules are influential, followed by many states as a matter of course. 

The current rule-- the rule that ABA Model Rule 8.4(g) would amend-- combats invidious discrimination and disciplines lawyers who corrupt the legal process through bias and prejudice in the course of representing a client.

The proposed rule would expand the conduct for which lawyers could be disciplined to any "conduct related to the practice of law," which is defined to include "interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or practice; and participating in bar association, business or social activities in connection with the practice of law." 

In addition to this expansive reach into employment law and social activities, the rule does away with the requirement that the words or conduct that could be censured are "prejudicial to the administration of justice." Under the proposed rule, a mere "offense" given by words or conduct could subject a lawyer to a grievance, even though it has nothing to do with protecting clients, the court, or justice. 

It's a bad idea. And it is a threat to religious liberty and lawyers' autonomy. 

Host Mike Schutt, who taught Professional Responsibility as a Regent Law professor is joined by Kim Colby to discuss the rule and its implications. 

Kim Colby is the director of Christian Legal Society’s Center for Law and Religious Freedom , where she has worked since graduating from Harvard Law School in 1981. She has represented religious groups in several appellate cases, including two cases heard by the United States Supreme Court. She has filed numerous amicus briefs in federal and state courts. Ms. Colby has prepared several CLS publications addressing issues about religious expression in public schools, including released time programs, implementation of the Equal Access Act, and teachers’ religious expression.

For more resources on this rule-- including videos explaining the issues and critical scholarship-- visit the Christian Legal Society 8.4 Resources page. 

Cross & Gavel is a production of Regent University School of Law and the Christian Legal Society.