On September 8, 2017, the Louisiana Attorney General’s office weighed in on the constitutionality of a proposed anti-discrimination amendment to the Louisiana Rules of Professsional Conduct. In July 2017, the Louisiana State Bar Association Rules of Professional Conduct Committee distributed for public comment a new anti-discrimination standard of professional conduct, proposed Rule 8.4(h), that would provide as follows if adopted by the Louisiana Supreme Court:
It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability. This Rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.
See LSBA Rules of Professonal Conduct, Rule 8.4 Subcommittee Report Executive Summary at p. 2 (Mar. 24, 2017); see also LSBA Rules of Professional Conduct Committee, Rule 8.4 Subcommittee Report (Mar. 24, 2017) (full report). The LSBA is considering this rule in response to newly-minted ABA Model Rule 8.4(g), which prohibits a lawyer from engagining in certain “harassment or discrimination” in “conduct related to the practice of law”:
It is professional misconduct for a lawyer to: . . . (g) 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. 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.
After considering the proposed LSBA provision and new ABA Model Rule 8.4(g), the Louisiana Attorney General’s office concluded that both are unconstitutional: “[I]t is the opinion of this office that a court would likely find ABA Model Rule 8.4(g) unconstitutional under the First and Fourteenth Amendments. Although proposed [LSBA] Rule 8.4(h) seeks to avoid many of the constitutional infirmities of the Model Rule, the proposed rule does not clearly define what type of behavior is prohibited and suffers from the same vagueness and overbreadth issues as ABA Model Rule 8.4(g).” See Op. La. Att’y Gen’l No. 17-0114 at 9 (Sep. 8, 2017). The reasoning underlying the attorney general’s opinions is as follows.
First Amendment Issues
First, the opinion concludes that the proposed regulation unconstitutionally restricts lawyer commercial speech. The ABA model rule and the proposed Louisiana rule are content-based regulations because they target speech based on the “viewpoints expressed” as well as the “subject matter and topic.” Id. at 3. Such regulations are “presumptively invalid.” Id. at 3. A presumptively-invalid, content-based regulation survives strict scrutiny under the First Amendment only if (1) the regulation serves a compelling governmental interest, and (2) the regulation is narrowly tailored to serve that compelling interest. Id. at 4. Citing In re Warner, 21 So. 3d 218, 227 (La. 2009), the opinion notes that a compelling interest exists to support a restriction on speech only if the regulation seeks to address a nonspecutlative and real societal harm. Here, the opinion argues, the LSBA has identified “no Louisiana discrimination cases” involving lawyers that were not already regulated by Louisiana Rule 8.4(d), which prohibits conduct “prejudicial to the administration of justice.” Because there is no “evidence that such a restriction on speech is necessary to cure a real harm, it is unlikely a court would find there is a compelling state interest.” Id. at 5.
Second, the opinion concludes that the proposed regulation is overbroad. More particularly, it argues that applying an anti-discrimination regulation to lawyer conduct “related to the practice of the law” or “in connection with the practice of law” presents overbreadth problems. Such a sweeping regulation “encompasses many areas and scenarios outside of the courtroom that are entitled to First Amendment protection.” Id. at 6. Among other possibilities, the rule would regulate and restrict the following:
- a lawyer engaged in a private conversation at a social activity sponsored by a law firm or bar association;
- a lawyer who expresses his “opinions, thoughts, or impressions on legal matters taking place in the news at a social function”; and,
- a lawyer participating in a continuing legal education panel discussion or authoring a law review article.
As a result, the opinion concludes that the proposal “is unconstitutionally overbroad as it prohibits and chills a substantial amount of constitutionally protected speech and conduct.” Id.
Third, the opinion concludes that the proposed regulation unconstitutionally restricts a lawyer’s freedom of association and free excercise of religion. It argues that lawyers “participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social
platform” such as “the Christian Legal Society, Jewish Legal Society, and Muslim Legal Society.” Id. at 6. The opinion speculates that “a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce (i.e., marital status).” Id. at 7. Therefore, “it is our opinion that a court would likely find ABA Model Rule 8.4(g) violates the First Amendment because it can be applied in a manner that unconstitutionally restricts a lawyer’s participation and involvement with both faith-based and secular groups that advocate or promote a specific religious, political, or social platform.” Id.
Due Process Issues
Finally, the opinion concludes that the ABA model rule (and its comments), and the LSBA proposal are unconstitutionally vague in violaiton of Due Process. A regulation is “void for vagueness if its
prohibitions are not clearly defined” and do not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” The following terms in the model rule and the LSBA proposal are questionable:
- The terms “harassment” and “discrimination” as defined in the comments to the model rule are similar to the term “annoy,” which the United States Supreme Court has found to be vague. “Conduct that is harmful, derogatory, or demeaning to some may not be to others and invites arbitrary and discriminatory enforcement.” Id. at 8.
- The prohibition against conduct that “involves” discrimination suggests that “an actual violation of a law is not required for a finding of professional misconduct.” As a result, this prohibition is “not clearly defined.” Id. at 8-9.
The attorney general concludes that the LSBA’s proposed amendment would not only be unconstitutional, but also unnecessary in light of the current regulatory framework:
The existing Rules of Professional Conduct and Louisiana laws against discrimination address the perceived problems identified in the Subcommittee’s report. There has been no demonstration that there is a need for proposed Rule 8.4(h) in Louisiana. Rule 8.4(d) addresses actions of lawyers which are prejudicial to the administration of justice and includes actions which are prejudicial to the administration of justice because they are discriminatory.
Id. at 9.
The Louisiana State Bar Association Rules of Professional Conduct Committee will consider these, and a myriad of other suggestions, at its meeting on October 30, 2017.