On January 20, 2023, the Idaho Supreme Court again rejected efforts to amend the Idaho Rules of Professional Conduct to add an anti-discrimination provision modeled on the ABA Model Rule 8.4. See In re Idaho State Bar Resolution 21-01 (Jan. 20. 2023). The proposed amended allowed for lawyers to be sanctioned for “engag[ing] in … harassment,” defined as “in representing a client or operating or managing a law practice or in the course and scope of employment in a law practice, engag[ing] in conduct that the lawyer knows or reasonably should know is harassment.” The Idaho Supreme Court cited concerns under the First Amendment in rejecting the proposed amendment:
Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct….
Although the Resolution provides parameters that help to describe harassment, these parameters do not adequately define what conduct is “intimidating” or “hostile” and therefore rises to the level of misconduct proscribed by the rule. We cannot conclude that these parameters are a sufficient framework to define harassment. As such, the Resolution is overbroad, and therefore, it is invalid under the First Amendment….
Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct….
States are split on whether to adopt rules which mirror Model Rule 8.4(g). Some states, such as Pennsylvania, Maine, Missouri, and New Hampshire have adopted rules analogous to ABA Model Rule 8.4(g). See ABA Center for Prof’l Responsibility, Policy Implementation Committee, Jurisdictional Adoption of Rule 8.4(g) of the ABA Model Rules of Professional Conduct (as of Sep. 19, 2018). Other states, including Tennessee, Minnesota, Louisiana, have declined to adopt similar provisions citing constitutional concerns. Id. As reported by the ABA:
- at least twenty states already had used some or all of the ideas expressed in the Model Rule comments to cultivate similar rules prohibiting discrimination and/or harassment. These states include California, Colorado, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Rhode Island, Washington, and Wisconsin;
- at least twenty-nine states have adopted comments to their rules regarding discrimination – including 13 states that have not yet promulgated a similar rule, and two states that have declined to adopt the amended Rule (SC and TN);
- at least four states/territories have adopted MRPC R. 8.4(g) in its entirety;
- at least six states have declined to adopt the amended Rule outright, citing constitutional implications.
See Kristine Kubes, Cara Davis, and Mary Schwind, The Evolution of Model Rule 8.4 (g): Working to Eliminate Bias, Discrimination, and Harassment in the Practice of Law, American Bar Association, Mar, 12, 2019.