The news out of Texas this week was not good for proponents of Rule 8.4(g), the newly adopted provision of the ABA Model Rules of Professional Conduct addressing discrimination and harassment. The new rule is currently under consideration by the Montana Supreme Court and being reviewed by the State Bar of Montana’s Ethics Committee. As the Texas Lawyer reports, Texas Attorney General Ken Paxton has issued an opinion concluding that the rule, not yet adopted by the Texas Supreme Court, would be unconstitutional if applied to Texas attorneys. Paxton apparently relied, in part, on the analysis of the rule conducted by Professor Ronald Rotunda, the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University’s Dale E. Fowler School of Law. Rotunda’s analysis was posted on the Heritage Foundation’s website in October. Rotunda is a major figure in the fields of constitutional law and legal ethics, and his analysis is worth a read. (Those who attended UM Law in the 1990s will recognize the name; Rotunda authored the constitutional law case book used at UM at the time and it continues to be a leading course book in many law schools.)
Not surprisingly, ABA President Linda Klein strongly disagrees with Paxton’s opinion, as the Texas Lawyer reports. “Texas Attorney General Paxton misinterprets ABA policy. This proposed rule expressly states that it in no way infringes on free speech or the ability of an attorney to zealously defend any client (or choose not to defend a client) based on the client’s beliefs,” said Klein.
The Montana Supreme Court will certainly have much to consider when it takes up the proposed rule at the close of public comment in the spring of ’17.