Before the #MeToo movement swelled into a cultural and legal phenomenon, the legal profession was already wrestling with how to address discrimination and harassment. In August 2016, the American Bar Association adopted Model Rule 8.4(g) at its annual meeting. The rule makes it professional misconduct 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.”
The model rule has sparked its own groundswell of controversy. In particular, some lawyers have claimed it could chill First Amendment religious and free speech rights. Concerns have also arisen over the possible broad scope of conduct “related” to law practice. As of June 13, according to an ABA report, only Vermont has actually adopted Rule 8.4(g). Maine and California have adopted rules similar to the model rule.
Some states have actively rejected 8.4(g). According to the same ABA report, Montana’s legislature claimed the state Supreme Court did not have the authority to regulate speech.
But now the Colorado Supreme Court’s Rules of Professional Conduct Standing Committee will consider adopting its own version of 8.4(g) at a hearing later this fall.