Arizona Supreme Court Rejects ABA “Political Correctness” Rule

On Thursday, the Arizona Supreme Court rejected the American Bar Association Rule 8.4(g). According to Alliance Defending Freedom, the rule which, if adopted, would have led to “politically correct monitoring of and restrictions on the speech and client choices of attorneys that practice within the state.”

Alliance Defending Freedom Senior Counsel Brad Abramson stated, “Americans don’t surrender their constitutionally protected freedoms when they enter the legal profession or any other profession. The Arizona Supreme Court quite possibly understood what the high courts of two other states also may have seen when they rejected the ABA’s proposed rule: that it would violate an attorney’s free speech, free association, and free exercise rights by allowing restrictions and monitoring based on political correctness, not the First Amendment. The rule’s proponents continue to dismiss its serious constitutional flaws without substantively addressing them. We trust that other states will follow Arizona’s lead in rejecting this rule.”

Abramson led the effort to file a comment with the Arizona Supreme Court in May on behalf of a group of Arizona attorneys opposed to adoption of the ABA rule.

American Bar Association Rule 8.4(g):

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 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.

According to the Alliance Defending Freedom comment filed with the court, “When the ABA opened up the new Model Rule for comment, a total of 481 comments were filed – and of those 481 comments, 470 of them opposed the new Rule, many on the grounds that the new Rule would be unconstitutional. Indeed, the ABA’s own Standing Committee on Attorney Discipline, as well as the Professional Responsibility Committee of the ABA Business Law Section, initially warned the ABA that the new Rule may violate attorneys’ First Amendment speech rights.”

“The ABA House of Delegates adopted Rule 8.4(g) in August 2016 at the ABA Annual Meeting. The rule was designed in part to prohibit discriminatory harassment not only in the practice of law but also at bar association meetings and other social functions,” David Hudson wrote in the American Bar Association Journal. “Comment 4 to the rule explains that “conduct related to the practice of law” includes not just representing clients and courtroom activity but also “participating in bar association, business or social activities in connection with the practice of law.” An ABA report noted evidence of sexual harassment at “activities such as law firm dinners and other nominally social events at which lawyers are present solely because of their association with their law firm or in connection with their practice of law.”

“Supporters say that the rule is necessary to enforce anti-discrimination principles, and that lawyers—as officers of the court—should be held to higher standards,” explained Hudson. “Opponents contend it imposes an unconstitutional speech restraint on lawyers and extends too far beyond the traditional definition of the practice of law.”

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