"ABA’s Quixotic Quest for Uniformity" by Alex B. Long
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Abstract

Under American Bar Association (“ABA”) Model Rule 8.4(g), it is professional misconduct for a lawyer to engage in conduct related to the practice of law that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race and other protected characteristics. Widespread concerns over the breadth and lack of clarity concerning the rule have triggered substantial criticism, including the refusal of multiple states to adopt this model rule. Instead, several states have responded by introducing alternative versions of Model Rule 8.4(g) or by applying older rules of professional conduct in the case of discriminatory speech or harassing conduct on the part of lawyers.

This Article discusses the ongoing dialogue between the states and the ABA concerning the kind of form a rule regulating discrimination and harassment within the profession should take. The Article highlights some of the complex issues involved through an examination of several high-profile cases involving controversial speech on the part of lawyers and in light of the ABA’s longstanding goals of promoting greater clarity and uniformity concerning the rules of professional conduct. It also examines the potential for some of these state alternatives to provide rule makers with greater insight into the benefits and potential drawbacks of relying upon Rule 8.4(g) or other legal ethics rules designed to deal with the issue of discrimination in the legal profession. Ultimately, the Article concludes that the values of clarity and uniformity should give way to the values of innovation and experimentation at the state level.

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