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    Louisiana AG Opinion on ABA Model Rule 8.4

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    17-0114

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    Louisiana AG Opinion on ABA Model Rule 8.4

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    © All Rights Reserved
    Download as PDF or read online from Scribd
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    68 views10 pages

    17 0114

    Uploaded by

    Howard Friedman
    Louisiana AG Opinion on ABA Model Rule 8.4

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    State of Louisiana [DEMRTNENT OF JUSTICE ‘CM DMSION| BOK 05 780 Bots Jeff Laney Astmey Gener ‘September 8, 2017 OPINION 17-0114 Ys coer amd | a cont at. v8) Warren L. Montgomery District Attomey, 22" JOC 701 N, Columbia St. Covington, LA 70433, ‘ABA Node fale cf Presson Conc Ag) sad SA otal eb at rt Pose hoe Dear Mr. Montgomery: ‘Our office received your request for an opinion regarding the constitutionalty of ABA Mode! Rule of Professional Conduct 8.4(g) which expands the defintion of professional misconduct for lawyers. In August of 2016, the ABA House of Delegates added paragraph (c) to ABA Model Rule 6.4 to provide that itis professional misconduct for a lawyer to: fengage 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, martial slalus or socioeconomie status in conduct related to the practice of law. ‘This paragraph does not limit the ablity ofa lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legiimate advice or advocacy consistent with these Rules. ‘As a result cf the ABA's adoption, the Louisiana State Bar Association ("LSBA") formed the Rule 8.4 Subcommittee (the “Subcommittes") following the Septemiber 28, 2016 ‘meeting of the LSBA's Rules of Professional Conduct Committee.’ The Subcommittee has proposed the following subsection [proposed Rule 8.4(h)] be added to Louisiana's current Rule 8.4 to provide that its professional misconduct fora lawyer to: ‘engage in conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disabilty. This Rule does not probit legitimate advocacy when race, color, religion, age, gender, sexual ¥LSBA RULES F PROFEssionAL Conouct Comrres, Rule 8.4 Subcommitoe Report, (Mar.24, 2017), nous sho oraldocumentyNewsil SBANews/RPCSubFina Report od (as visited Aug. 22,2017) ir Wier ( Morigaeny Page ‘orientation, national origin, marital status, or disabilly are issues, nor does it limit the ability of @ lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16? ‘The LSBA Rules of Professional Conduct Committee has nat yet taken any position on the Subcommitle’s proposed Rule 8.4(h) and instead has chosen to seek written comments ffom the public regarding the full text of ABA Model Rule 8.4(g).” You are concemed that ABA Model Rule 8.4(g) violates the constitutional guarantees of the United States Constitution because the rule restrains the speech and actions of lawyers in a wide variety of areas outside ofthe courtroom. Due to these restrictions the rule may violate a lawyer's right to freedom of speech, freedom of association, and free exercise of religion. Additionally you are concemed that due to the vague terms included in the rules, they might Violate a lawyers due process rights under the Fourteenth Amendment. We begin our analysis by noting that pursuant to La, Const. art. V §5(B), the Louisiana ‘Supreme Court has exclusive original jurisdiction of disciplinary proceedings against a ‘member of the bar. “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to “ree speech’ an altomey has is exiremely circumscribed.” However, itis well established that a state may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.® "[Blroad rules framed to protect the public and to preserve respect for the administration of justice must not ‘work a significant impairment of the value of associational freedoms. rst ‘The First Amendment of the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, ‘or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ‘As noted by both the Louisiana Supreme Court and the United States Supreme Court the “liberty of speech and of the press which the First Amendment guarantees against ‘abridgment by the federal government is within the liberty safeguarded by the Due * LSBA RULES OF PROFESSIONAL ConoUcT COMMITTEE, Rule 8.4 Subcommitse Repor: EXECUTIVE ‘SUMMARY (Mar. 24,2017), ‘nips iba orldocumentsiNews/| SBANew/RECExeculveSummarvpdf (ast visited August 22, an, S"LSBA Rules of Professional Conduct Commitoe Secking Welton Comments on ABA Model Rule ‘2.d(g)” iositwmulaba craNews/rsle sox? Arise=T 18ste90.dSe0-4204-sodo fod a8ero080 (ast yisted august 22,2017). 4 Gone v. State Bar of Nev. 801 US. 1030, 1071 (1991), NAACP v Buon, 371 US 418, £39 (1963), Inve Primus, 4980S, 412, 426 (1978). OPINION 17.0434 Process Clause of the Fourteenth Amendment from invasion by state action."” These Fights are also guaranteed in our Stato Consttuion® "The history of the law of free expression is one of vindication in cases involving sfeech that many citizens may find shabby, offensive, or even ualy."” Speech may not be prohibited because it concerns subjects offending our sensbiies."¥ The fact that zome in socily may find speach offensive is nota sufficient reason for suppressing i." The First Amendment protects, “Tel ideas having even the slightest redeeming socialimportance.""* In order to decide whether a regulation restricting speech is constitutional, a court must first determine whether the regulation is content-based or content-neutral so that the appropriate analysis can be applied.'® Content-neutral speech restrictions are those that are justified without reference to the content ofthe regulated speech. As a general rule, “laws that confer benefits or impose burdens on speech without reference to the Ideas or views expressed are in most instances content neutral“"* Content-neutral ‘regulations are subject to an intermediate level of scrtiny."® “Content-Based laws include both regulations that target speech based on the viewpoints expressed and regulations that target speech on the basis of subject matter ‘ topic.”"* "As a general rule, laws that by their termrs distinguish favored speech from disfavored speech on the basis of the ideas or view expressed are content based.” ‘The United ‘States Constitution prohibits restrictions on free speech “because of disapproval of the ideas expressed.""* "Regulations which permit the Govemment to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." “The constitutional right of free expression is... intended to remove govemmental restraints from the arena of public discussion, putting the

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