If Tennessee adopted ABA Model Rule 8.4(g) banning lawyer harassment and discrimination 'related to the practice of law,' would that violate Tennessee attorneys' constitutional rights?

Plain-English summary

In 2016 the ABA adopted Model Rule of Professional Conduct 8.4(g), which makes it professional misconduct for a lawyer to engage in "harassment or discrimination" "related to the practice of law" on the basis of an extensive list of protected characteristics. The Tennessee Board of Professional Responsibility and the Tennessee Bar Association filed a Joint Petition asking the Tennessee Supreme Court to adopt a Tennessee version. Rep. Mike Carter asked AG Slatery to evaluate it.

AG Slatery's answer was a clear no, accompanied by a 12-page comment letter filed with the Tennessee Supreme Court the same day. The opinion identifies several problems.

First, the proposed rule reaches speech, not just conduct. Comment 3 to the proposed rule defines "harassment" and "discrimination" to include "verbal" conduct. Comment 4 explains that "conduct related to the practice of law" sweeps in CLE events, bar association meetings, "business or social activities in connection with the practice of law," and even casual remarks at law-firm dinners. That puts a huge amount of attorney expression under disciplinary supervision.

Second, the rule applies viewpoint-based discrimination to that speech. Comment 4 says lawyers may "promote diversity and inclusion without violating this Rule," which means the rule allows positive expression about a characteristic and disciplines "derogatory or demeaning" expression. Like the trademark disparagement clause struck down in Matal v. Tam, this is "mandat[ing] positivity" through state power. Viewpoint discrimination is "presumptively unconstitutional" and survives only narrow tailoring to a compelling interest, which the proposed rule does not satisfy.

Third, the rule is overbroad. Even if certain applications might be valid (a discriminatory comment in court, for example), the rule reaches "a substantial number" of constitutionally protected applications, including statements at debates, law-review articles, board service for religious or political organizations, and any speech merely "related to" the practice of law. That triggers facial invalidation under United States v. Stevens.

Fourth, the rule is vague. Terms like "harassment," "discrimination," "reasonably should know," "related to the practice of law," and "legitimate advice or advocacy" do not give attorneys fair notice. Whether speech is "harmful" or "derogatory" depends on a listener's subjective reaction. Dambrot v. Central Michigan University struck down a similar university harassment policy on the same ground.

Fifth, the rule infringes on freedom of association and free exercise of religion. It contains no religious-organization carve-out, unlike the parallel rule for judges (CJC 3.6 cmt. 4). An attorney serving on the board of a religious organization, or speaking publicly about how religious beliefs shape legal practice, could trigger discipline. The rule may also violate the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407(c).

Sixth, the rule conflicts with the existing Rules of Professional Conduct. RPC 8.4(d) already prohibits bias-based conduct that is "prejudicial to the administration of justice." The new rule jettisons that limitation and reaches conduct that has nothing to do with fitness to practice. It also creates tension with RPC 1.16 (decline or withdraw from representation) and RPC 2.1 (lawyers may consider "moral, economic, social, and political factors") because an attorney's principled refusal to take certain clients could itself be charged as discrimination.

The opinion notes that, as of 2018, only Vermont had adopted ABA Model Rule 8.4(g), and that the Attorneys General of Louisiana, South Carolina, and Texas had likewise concluded the model rule would violate the First Amendment and Due Process Clause.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee did not adopt the proposed Rule 8.4(g) at the time of this opinion. The status of state-level adoptions of ABA Model Rule 8.4(g) and the federal court rulings on the rule's constitutionality have continued to develop. Practitioners should check current Tennessee Supreme Court rules and current case law before relying on the analysis here.

Common questions

Q: Does Tennessee currently have an attorney rule like ABA 8.4(g)?
A: As of this opinion's writing (2018), Tennessee had not adopted Rule 8.4(g). The existing Rule 8.4(d) and its comment 3 prohibit bias-based conduct that is "prejudicial to the administration of justice," which is a narrower formulation. Pull the current Tennessee Supreme Court Rule 8 to check today's version.

Q: What is "viewpoint discrimination" and why does it matter so much?
A: Viewpoint discrimination is when the government regulates speech based on the speaker's particular position on a topic, rather than based on the topic itself. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), calls it "an egregious form of content discrimination." Speech regulations that turn on viewpoint are "presumptively unconstitutional" and almost never survive strict scrutiny. The AG argued that allowing pro-diversity statements while punishing "derogatory or demeaning" ones is exactly that.

Q: Why does the AG say the rule reaches "social activities" with law colleagues?
A: The proposed Comment 4 defined "conduct related to the practice of law" to include "participating in bar association, business or social activities in connection with the practice of law." The ABA's own report explicitly said the rule covers "law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm." That sweeps a casual remark over dinner into the disciplinary apparatus.

Q: Does this opinion apply to judges as well?
A: No. Judges are governed by the Code of Judicial Conduct, not the Rules of Professional Conduct. Importantly, the parallel judicial rule (CJC 3.6) explicitly preserves religious-organization membership in comment 4. The proposed RPC 8.4(g) had no such carve-out, which is one reason the AG flagged it as worse than the existing judge-focused rule.

Q: What about discrimination in hiring or in court? Isn't that already covered?
A: Yes. Title VII, Title IX, the ADA, and the Tennessee Human Rights Act already cover the hiring and education contexts. RPC 8.4(d) already covers conduct prejudicial to the administration of justice, which includes courtroom bias. The AG's argument is that the new rule reaches well past those existing protections to cover speech that has nothing to do with employment, education, or judicial proceedings.

Q: What were the criticisms from outside Tennessee?
A: The comment letter says ABA Model Rule 8.4(g) had been "widely and justifiably criticized" as a "speech code for lawyers." As of this opinion the rule had been adopted by only one state, Vermont. The letter notes that the Attorneys General of Louisiana, South Carolina, and Texas had each concluded the model rule would violate the First Amendment and Due Process Clause.

Q: Does First Amendment protection really apply to attorney speech?
A: Yes, robustly. In re Primus, 436 U.S. 412 (1978), applied strict scrutiny to invalidate discipline imposed on an attorney for telling a forced-sterilization client about ACLU representation. Tennessee's own Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989), reversed discipline imposed on a District Attorney General for media remarks critical of the judiciary. Courts allow the government to limit attorney speech in only narrow circumstances, mostly when the speech pertains to a pending proceeding or directly prejudices the administration of justice.

Background and statutory framework

Lawyer professional regulation in Tennessee is set by the Tennessee Supreme Court under its inherent constitutional authority and Tenn. Code Ann. § 16-3-501. The Rules of Professional Conduct sit at Tenn. Sup. Ct. R. 8. The existing Rule 8.4(d) makes it professional misconduct to "engage in conduct that is prejudicial to the administration of justice," and comment 3 ties bias-based conduct to that standard.

The proposed Rule 8.4(g) would have created a free-standing prohibition on "harassment or discrimination" "in conduct related to the practice of law," covering race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, and socioeconomic status. The proposal removed the "prejudicial to the administration of justice" link.

First Amendment doctrine treats attorney speech as fully protected outside narrow categories. Brown v. Entertainment Merchants Ass'n confirms that content-based regulation triggers strict scrutiny. Matal v. Tam invalidated a viewpoint-discriminatory trademark rule. Boy Scouts of America v. Dale recognized expressive association rights for membership-based viewpoints. The AG also pointed to the Tennessee Religious Freedom Restoration Act (Tenn. Code Ann. § 4-1-407(c)), which bars the government from substantially burdening religious exercise absent the least restrictive means of a compelling interest.

Citations

• U.S. Const. amend. I
• Tenn. Sup. Ct. R. 8, RPC 1.16, 2.1, 8.4(b), (d), (g) (proposed)
• Tenn. Sup. Ct. R. 10, CJC 3.6(A) & cmt. 4
• Tenn. Code Ann. § 4-1-407(c) (TN RFRA)
• Tenn. Code Ann. §§ 4-21-401, 4-21-405 (TN Human Rights Act)
• 20 U.S.C. § 1681; 29 U.S.C. §§ 623, 794; 42 U.S.C. §§ 2000d, 2000e-1(a), 2000e-2, 12112
• Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011)
• Matal v. Tam, 137 S. Ct. 1744 (2017)
• In re Primus, 436 U.S. 412 (1978)
• Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989)
• Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)
• United States v. Stevens, 559 U.S. 460 (2010)
• F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239 (2012)
• Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)
• Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
• Dambrot v. Cen. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 16, 2018
Opinion No. 18-11

American Bar Association's New Model Rule of Professional Conduct Rule 8.4(g)

Question 1
If Tennessee were to adopt the American Bar Association's new Model Rule 8.4(g), or the version of it currently being considered in Tennessee, could Tennessee's adoption of that new Rule constitute a violation of a Tennessee attorney's statutory or constitutional rights under any applicable statute or constitutional provision?

Opinion 1
Yes. Proposed Rule of Professional Conduct 8.4(g) would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct.

ANALYSIS
For the analysis that forms the basis of this opinion, please see the Comment Letter of the Tennessee Attorney General filed with the Tennessee Supreme Court on March 16, 2018, in response to the Court's order of November 21, 2017, soliciting written comments on whether to adopt the amendments to Tennessee Supreme Court Rule 8, Rule of Professional Conduct 8.4, that are being proposed by Joint Petition of the Tennessee Board of Professional Responsibility and the Tennessee Bar Association. A copy of the Comment Letter is attached hereto and incorporated herein.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARAH K. CAMPBELL
Special Assistant to the Solicitor General and the Attorney General

Requested by:
The Honorable Mike Carter
State Representative
632 Cordell Hull Building
Nashville, Tennessee 37243

Office of the Attorney General
March 16, 2018

The Honorable Jeffrey S. Bivins, Chief Justice
The Honorable Cornelia A. Clark, Justice
The Honorable Holly Kirby, Justice
The Honorable Sharon G. Lee, Justice
The Honorable Roger A. Page, Justice
Attn: James M. Hivner, Clerk
Tennessee Supreme Court
100 Supreme Court Building
401 7th Avenue North
Nashville, TN 37219

Re: No. ADM2017-02244 - Comment Letter of the Tennessee Attorney General Opposing Proposed Amended Rule of Professional Conduct 8.4(g)

Dear Chief Justice Bivins, Justice Clark, Justice Kirby, Justice Lee, and Justice Page:

This letter is being filed in response to the Court's order of November 21, 2017, soliciting written comments on whether to adopt amendments to Tennessee Supreme Court Rule 8, Rule of Professional Conduct 8.4, that were proposed by Joint Petition of the Tennessee Board of Professional Responsibility ("BPR") and the Tennessee Bar Association ("TBA"). Because proposed Rule of Professional Conduct 8.4(g) would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct, the Tennessee Office of the Attorney General and Reporter strongly opposes its adoption.

The proposed amendments to Rule 8.4 and its accompanying comment are "patterned after" ABA Model Rule 8.4(g). That model rule has been widely and justifiably criticized as creating a "speech code for lawyers" that would constitute an "unprecedented violation of the First Amendment" and encourage, rather than prevent, discrimination by suppressing particular viewpoints on controversial issues. To date, ABA Model Rule 8.4(g) has been adopted by only one State, Vermont. A number of other States have already rejected its adoption. Although the BPR and TBA assert in their Joint Petition that their Proposed Rule 8.4(g) "improve[s] upon" ABA Model Rule 8.4(g) by "more clearly protecting the First Amendment rights of lawyers," Joint Petition 1, the proposed rule suffers from the same fundamental defect as the model rule: it wrongly assumes that the only attorney speech that is entitled to First Amendment protection is purely private speech that is entirely unrelated to the practice of law. But the First Amendment provides robust protection to attorney speech, even when the speech is related to the practice of law and even when it could be considered discriminatory or harassing. Far from "protecting" the First Amendment rights of lawyers, Proposed Rule 8.4(g) would seriously compromise them.

If adopted, Proposed Rule 8.4(g) would profoundly transform the professional regulation of Tennessee attorneys. It would regulate aspects of an attorney's life that are far removed from protecting clients, preventing interference with the administration of justice, ensuring attorneys' fitness to practice law, or other traditional goals of professional regulation. Especially since there is no evidence that the current Rule 8.4 is in need of revision, there is no reason for Tennessee to adopt such a drastic change. If the TBA and BPR are right that harassing and discriminatory speech is a problem in the legal profession, then the answer is more speech, not enforced silence in the guise of professional regulation.

I. Problematic Features of Proposed Rule 8.4(g)

In their current form, the Rules of Professional Conduct do not expressly prohibit discrimination or harassment by attorneys. Rather, Rule 8.4(d) provides that it is "professional misconduct" to "engage in conduct that is prejudicial to the administration of justice." Tenn. Sup. Ct. R. 8, RPC 8.4(d). And comment 3 provides that "[a] lawyer, who in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status violates paragraph (d) when such actions are prejudicial to the administration of justice." Id. at RPC 8.4(d), cmt. 3. Comment 3 also makes clear that "[l]egitimate advocacy representing the foregoing factors does not violate paragraph (d)." Id.

Proposed Rule 8.4(g) would establish a new black-letter rule that subjects Tennessee attorneys to professional discipline for "engag[ing] 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." Comment 3 to the proposed rule would define "harassment" and "discrimination" to include not only "physical conduct," but also "verbal . . . conduct," better known as speech.

Several problematic features of the proposed rule warrant highlighting. First, the proposed rule would apply not only to speech and conduct that occurs in the course of representing a client or appearing before a judicial tribunal, but also to speech and conduct that is merely "related to the practice of law." (emphasis added). Comment 4 to the proposed rule explains that "[c]onduct 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." Far from cabining the scope of the proposed rule, comment 4 leaves no doubt that the proposed rule would apply to virtually any speech or conduct that is even tangentially related to an individual's status as a lawyer, including, for example, a presentation at a CLE event, participation in a debate at an event sponsored by a law-related organization, the publication of a law review article, and even a casual remark at dinner with law firm colleagues. Such speech or conduct would be "professional misconduct" even if it in no way prejudices the administration of justice.

Second, the proposed rule would prohibit a broad range of "harassment or discrimination," including a significant amount of speech and conduct that is not currently prohibited under federal or Tennessee antidiscrimination statutes. To the extent that federal antidiscrimination laws apply to attorneys engaged in speech or conduct related to the practice of law, they generally apply only in the employment and education contexts and prohibit discrimination only on the basis of race, color, national origin, religion, sex, age, or disability. See 20 U.S.C. § 1681 (Title IX); 29 U.S.C. § 623 (ADEA); 29 U.S.C. § 794 (Rehabilitation Act); 42 U.S.C. § 2000d (Title VI); 42 U.S.C. § 2000e-2 (Title VII); 42 U.S.C. § 12112 (ADA). The Tennessee Human Rights Act similarly applies only in certain limited areas, including employment, and prohibits discrimination only on the basis of "race, creed, color, religion, sex, age or national origin." Tenn. Code Ann. § 4-21-401. Under both federal and state antidiscrimination laws, moreover, the only discrimination or harassment that is actionable in the employment context is that which results in a materially adverse employment action or is sufficiently severe and pervasive to create a hostile work environment. Federal and state antidiscrimination laws also explicitly protect religious freedom by exempting religious organizations from their ambit. See, e.g., 42 U.S.C. § 2000e-1(a); Tenn. Code Ann. § 4-21-405.

Proposed Rule 8.4(g) would reach well beyond federal and state antidiscrimination laws. For one thing, the proposed rule would prohibit any and all "harassment or discrimination," even that which does not result in any tangible adverse consequence and is not sufficiently severe or pervasive to create a hostile environment. Even more troubling, Proposed Rule 8.4(g) would prohibit "harassment or discrimination" on the basis of characteristics that are not expressly covered by federal and state antidiscrimination laws, namely, "sexual orientation, gender identity, marital status, [and] socioeconomic status." Many who hold traditional views on these issues do so because of sincerely held religious beliefs. As the U.S. Supreme Court recognized in Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015), many who consider "same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises." By deeming as "professional misconduct" any speech that someone may view as "harmful" or "derogatory or demeaning," Proposed Rule 8.4(g) would prevent attorneys who hold traditional views on these issues from "engag[ing] those who disagree with their view in an open and searching debate," Obergefell, 135 S. Ct. at 2607.

Third, Proposed Rule 8.4(g) would prohibit not only speech and conduct "that the lawyer knows . . . is harassment or discrimination," but also that which the lawyer "reasonably should know is harassment or discrimination." In other words, the proposed rule would subject an attorney to professional discipline for uttering a statement that was not actually known to be or intended as harassing or discriminatory, simply because someone might construe it that way.

II. Proposed Rule 8.4(g) Would Violate the U.S. and Tennessee Constitutions and Conflict with the Rules of Professional Conduct.

A. Proposed Rule 8.4(g) Would Infringe on Tennessee Attorneys' Rights to Free Speech, Freedom of Association, Free Exercise of Religion, and Due Process.

Proposed Rule 8.4(g) would clearly violate the First Amendment rights of Tennessee attorneys. The First Amendment prohibits the government from regulating protected speech or expressive conduct based on its content unless the regulation is the least restrictive means of achieving a compelling government interest. See Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 799 (2011). Expression that would be deemed discrimination or harassment on the basis of one of the categories included in Proposed Rule 8.4(g) is entitled to robust First Amendment protection, even though listeners may find such expression harmful or offensive. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001) (Alito, J.) ("[T]here is 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."). The U.S. Supreme Court has made clear that, save for a few narrowly defined and historically recognized exceptions, the "public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Matal v. Tam, 137 S. Ct. 1744, 1763 (2017) (plurality opinion).

The fact that the speech at issue is that of attorneys does not deprive it of protection under the First Amendment. As a general matter, the expression of attorneys is entitled to full First Amendment protection, even when the attorney is acting in his or her professional capacity. See, e.g., In re Primus, 436 U.S. 412, 432-38 (1978). Courts have permitted the government to limit the speech of attorneys in only narrow circumstances, such as when the speech pertains to a pending judicial proceeding or otherwise prejudices the administration of justice. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1072 (1991); Bd. of Prof'l Responsibility v. Slavin, 145 S.W.3d 538, 549 (Tenn. 2004).

This Court's decision in Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116 (Tenn. 1989), is particularly instructive. There, a District Attorney General's law license was suspended because he made remarks to the media that were critical of the judicial system. This Court held that the disciplinary sanctions violated the First Amendment because the attorney's remarks, though "disrespectful and in bad taste," were protected expression. Id. at 122. This Court made clear that "[a] lawyer has every right to criticize court proceedings and the judges and courts of this State after a case is concluded," as long as those statements are not false. Id. at 122.

Proposed Rule 8.4(g) would not only regulate speech that is protected by the First Amendment, but it would also do so on the basis of viewpoint. "It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). Proposed Rule 8.4(g) discriminates based on viewpoint because it would permit certain expression that is laudatory of a person's race, sex, religion, or other protected characteristic, while prohibiting expression that is "derogatory or demeaning" of that characteristic. Indeed, proposed comment 4 makes clear that "[l]awyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule." (emphasis added). Like the trademark disparagement clause that the U.S. Supreme Court invalidated on First Amendment grounds in Matal, Proposed Rule 8.4(g) "mandat[es] positivity." 137 S. Ct. at 1766 (Kennedy, J., concurring in part and concurring in the judgment).

Even if discrete applications of Proposed Rule 8.4(g) could be upheld, the rule would still be subject to facial invalidation because it is unconstitutionally overbroad. A law may be invalidated under the First Amendment overbreadth doctrine "if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 473 (2010).

Proposed Rule 8.4(g) also suffers from a related problem: the terms "harassment," "discrimination," "reasonably should know," "related to the practice of law," and "legitimate advice or advocacy" are impermissibly vague under the Due Process Clause. F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). The lack of clarity in Proposed Rule 8.4(g)'s terms 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. Kolender v. Lawson, 461 U.S. 352, 356 (1983). See also Dambrot v. Cen. Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995) (invalidating university "discriminatory harassment" policy on vagueness grounds).

Proposed Rule 8.4(g) would also infringe on the First Amendment right of Tennessee attorneys to engage in expressive association. Boy Scouts of Am. v. Dale, 530 U.S. 640, 647 (2000). In this respect, the proposed rule is far broader than Rule 3.6 of the Code of Judicial Conduct, which prohibits a judge from "hold[ing] membership in any organization that practices invidious discrimination" but explicitly carves out: "[a] judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation" of the rule. Tenn. Sup. Ct. R. 10, CJC 3.6(A) & cmt. 4. Proposed Rule 8.4(g), by contrast, is not limited to "invidious" discrimination and contains no exception for membership in a religious organization.

Because Proposed Rule 8.4(g) includes no exception for speech or conduct that is motivated by one's religious beliefs, it would also interfere with attorneys' First Amendment right to the free exercise of religion. The proposed rule may also violate Tennessee's Religious Freedom Restoration Act, which prohibits the government from "substantially burden[ing] a person's free exercise of religion even if the burden results from a rule of general applicability," unless the burden is the least restrictive means of furthering a compelling government interest. Tenn. Code Ann. § 4-1-407(c).

B. Proposed Rule 8.4(g) Would Conflict with the Rules of Professional Conduct.

In addition to violating the constitutional rights of Tennessee attorneys, Proposed Rule 8.4(g) would also conflict in numerous respects with the spirit and letter of the existing Rules of Professional Conduct. Most fundamentally, the proposed rule would disregard the traditional goals of professional regulation by "open[ing] up for liability an entirely new realm of conduct unrelated to the actual practice of law or a lawyer's fitness to practice, and not connected with the administration of justice." Even violations of criminal law are left unregulated by the Rules of Professional Conduct when they do not "reflect[] adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects," Tenn. Sup. Ct. R. 8, RPC 8.4(b). But Proposed Rule 8.4(g) would subject attorneys to professional discipline for speech or conduct that violates neither federal nor state antidiscrimination laws and has no bearing on fitness to practice law or the administration of justice.

The proposed rule also threatens to interfere with an attorney's broad discretion to decide which clients to represent. While the proposed rule states that it "does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with RPC 1.16," the latter rule only addresses the circumstances in which an attorney is required to decline or withdraw from representation. An attorney who would prefer not to represent a client because the attorney disagrees with the position the client is advocating, but is not required under Rule 1.16 to decline the representation, may be accused of discriminating against the client under Proposed Rule 8.4(g).

The proposed rule may also chill attorneys from representing clients who wish to advocate positions that could be considered harassment or discrimination based on a protected characteristic, or at least from doing so zealously as required by the Rules of Professional Conduct. More generally, the proposed rule infringes on the ability of attorneys to practice law in accordance with their religious, moral, and political beliefs. Yet the Rules of Professional Conduct make clear that lawyers should be "guided by personal conscience" and informed by "moral and ethical considerations." Tenn. Sup. Ct. R. 8, RPC Preamble and Scope; see also id. at RPC 2.1 ("In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.").

Because Proposed Rule 8.4(g) would violate the constitutional rights of Tennessee attorneys and conflict with the existing Rules of Professional Conduct, it is incumbent on the Office of the Attorney General to urge this Court to reject its adoption. The existing Rules of Professional Conduct are sufficient to provide for the discipline of attorneys whose expressions of "bias or prejudice" are in fact "prejudicial to the administration of justice." Tenn. Sup. Ct. R. 8, RPC 8.4, cmt. 3. And existing federal and state antidiscrimination laws may provide recourse for individuals who are subjected to discrimination or harassment by attorneys in the workplace or in educational institutions. To the extent that the Joint Petition seeks to suppress speech on controversial issues such as same-sex marriage or gender identity, it is directly contrary to the First Amendment principle that the remedy for speech with which one disagrees is "more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Sincerely,

Herbert H. Slatery III
Attorney General and Reporter

The Attorneys General of Louisiana, South Carolina, and Texas have likewise concluded that ABA Model Rule 8.4(g) would violate the First Amendment and Due Process Clause. See La. Att'y Gen. Op. 17-0114 (Sept. 8, 2017); S.C. Att'y Gen. Op. on Constitutionality of ABA Model Rule 8.4(g) (May 1, 2017); Tex. Att'y Gen. Op. KP-0123 (Dec. 20, 2016).