The Tennessee Bar Association and the Tennessee Board of Professional Responsibility submitted to the Tennessee Supreme Court a proposal to amend the Rules of Professional Conduct by adopting a new Rule 8.4(g). The Court received over 400 responses to its request for comments on proposed Rule 8.4(g). Many folks raised the First Amendment as their primary objection.
The
proposed rule would make it
professional 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.
Proposed Rule
8.4(g) (emphasis added). The highlighted language is the most objectionable
part of this proposed rule. First, the proposal would change the current rule
from “knowingly” manifesting bias or prejudice to a negligence standard of “reasonably
should know.” The TBA and BPR’s attempt to lower the standard necessary
to establish a violation leads to the second point, i.e., broadening the rule’s
reach.
Under the current rule, to violate the rule, one has to engage in conduct that is “prejudicial to the administration of justice.” The TBA and BPR, however, wanted to drop this traditional limit; thereby leaving lawyers to guess if their conduct, which does not prejudice “the administration of justice,” would result in disciplinary action.
Related to this is the expansion of regulated conduct. The current rule applies to a lawyer’s conduct “in the course of representing a client.” The TBA and the BPR sought to expand this to “conduct related to the practice of law.” The broad definition of this conduct 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.” Proposed Rule 8.4(g) Comment [4]. It goes well beyond “in the course of representing a client.”
These proposed changes raised serious First Amendment problems. For example, a lawyer is invited to speak at her church in response to a court decision expanding the reach of Title VII. If her comments take issue with the court’s decision, has she violated this rule? She’s speaking as a lawyer on a law-related matter. Or a lawyer is meeting a potential client at a local restaurant and the lawyer and this potential client have similar views on the changes in the law regarding the broadening of anti-discrimination statutes to cover those who identify as a sex other than the sex on the birth certificate. Their waiter was born a male but is in the middle of the sex-reassignment process, and she is offended by what she’s heard. Has the lawyer violated the proposed rule? The drafters of the rule offer that it does not affect speech or conduct protected by the First Amendment. This is a truism.
And it is a ploy of the speech-code crowd to fool others into believing that they are friendly to free speech. The speech-code crowd only wants to protect speech they agree with. It is sad that the TBA and BPR have joined the ABA in its quest to silence those with whom they disagree. If, as the TBA and BPR say, they don't want to regulate free speech, then the current rule works just fine.
The Tennessee Supreme Court's rejection of this proposed rule is a victory for those who still believe that free speech and debate are good for a free society.
