A Vague and Overbroad Speech Code for Lawyers

To the Editor:

As a result of a meeting of the Advisory Committee on Rules on September 7, 2018, an amended version of Rule 8.4(g) was approved and forwarded to the full Supreme Court. The Court intends to publish the revised version, receive written comment, and schedule a hearing or hearings. To ensure the rule receives a thorough vetting, bar members should think carefully about what passage of this controversial rule will mean to the practice of law in New Hampshire and share their opinions with the court.

Since its adoption by the ABA in 2016, 8.4(g) has been rejected in nine states ((AZ, ID, IL, LA, MN, MT, NV, SC, and TN) and adopted in only one (VT). As comments submitted both to our own court and to courts across the country demonstrate, there are serious objections to 8.4(g) on constitutional grounds, namely, that it violates lawyers’ rights of free speech and free exercise of religion, and that it is unconstitutionally vague. Rather than reiterate legal objections (See https://www.courts.state.nh.us/committees/adviscommrules/dockets/2016/index.htm), I urge members of the bar to consider the following as further justification for opposing adoption of 8.4(g).

Let’s start at the source of the rule: the ABA Standing Committee on Ethics and Professional Responsibility. Anyone who assumes that Rule 8.4(g) is intended to protect clients, courts, the justice system, and lawyers is wrong. In making its recommendation to add 8.4(g) to the ABA’s Model Rules of Professional Conduct, the committee quoted with approval the  original draftsmen’s statement of purpose: “There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct” (emphasis added). If 8.4(g) is designed to promote “a cultural shift” in New Hampshire rather than to protect our legal system and its intended beneficiaries, it’s off on the wrong foot. It immediately raises questions, ones I hope you will ask yourself.

Question 1: “What or who is the driving force behind adopting this rule in New Hampshire?” The group pressing hardest for the adoption of 8.4(g) is the New Hampshire Women’s Bar Association. There’s been no outcry of lawyer discrimination from any other group. The NHWBA, through its president, alleged in last month’s Bar News that discrimination against women is “irrefutable” and “endemic” in New Hampshire’s legal profession, that such discrimination “permeates” hiring, promotion, and compensation, and “hampers the achievement of attorneys at every level.” The only document offered as evidence of such discrimination is the Draft Report on the NHBA’s 2017 Gender Equality Survey. Notice the word “Draft.” It’s used because the full report and underlying data have yet to be published and are hard to find. Would it surprise you to learn that the survey’s 17% response rate and self-selection bias renders it “very unlikely” to “provide any credible statistics of the population as a whole” according to the Reference Manual on Scientific Evidence? Or that the percentages so often cited by NHWBA include answers from respondents having minimal contact with NH (10% don’t practice law here at all; an additional 14% practice here less than 25% of the time)? (For more details, see my September 6th letter to the Advisory Committee on Rules on the Supreme Court’s website). If this gender survey is deemed proof of “endemic” discrimination, then the following should be considered as evidence refuting it: 1) NH has been found to be the “least sexist state” (Washington Post, August 21, 2018); 2) the NHBA’s Board of Governors did not find it necessary to mention discrimination in when it passed “The New Hampshire Lawyer Professionalism Creed” on January 21, 2016; and, 3) statistics of the NH Commission for Civil Rights do not support a finding of widespread discrimination anywhere in the state, much less in the legal profession (i.e., 2016 NH labor force = 746,450; number of employment discrimination claims (all types combined) under NH law = 240; number found to have probable cause = 18).

Question 2: “Where’s the evidence the rule is needed?” Given the extensive consciousness-raising activities of #MeToo and The Women’s March, I find it hard to believe that women are incapable of dealing on the spot with rude or sexist jokes and comments. Words are, after all, a lawyer’s stock in trade. Moreover, a panoply of state and federal laws prohibits discriminatory conduct in the workplace, including decisions on hiring and pay. So, what’s driving 8.4(g)? Promoting a “cultural shift” via a speech code is what this is all about, as evidenced by the chart from the 2017 Gender Equality Study (printed in last month’s Bar News as part of the NHWBA opinion piece). Of the five “inappropriate behaviors” shown in it, one is “inappropriate touching,” and the remaining four involve speech subjectively found to be offensive (“titles and terms of endearment,” “condescending treatment,” “comments on apparel/appearance,” “verbal advances”). What better way to force a cultural shift on what can and can’t be said by lawyers than to hold the threat of an ethics complaint over their heads?

Question 3: “What conduct does the rule proscribe?” For many of those supporting adoption of the rule, its lack of definitions and vagueness are not constitutional defects, but rather desirable features. According to the NHWBA, defining what is meant by “harassment” and “discrimination” is too limiting, possibly not reaching such “reprehensible behavior” as “commenting on apparel or appearance,” mistaking a lawyer for a non-attorney, or other subjectively-felt “microagressions.” Supporters advocate plucking the words “harassment” and “discrimination” out of federal and state law, scraping off any statutory limitations such as needing to show severity or pervasiveness, and applying them to lawyers in contexts entirely outside those covered by law (employment, housing, and public accommodations). Not even criminal violations are treated this loosely under the professional conduct rules. (For a criminal act to constitute misconduct, Rule 8.4(b) requires that it be one that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”) As Attorney Gene VanLoan persuasively argued in his Letter to the Editor published in last month’s Bar News, further ambiguity is created by the phrase “acting as a lawyer in any context.” Does this include representing yourself at a Planning Board meeting? Officiating at a wedding? Talking shop with another lawyer at a birthday party?

Bottom line? The vagueness of 8.4(g) should alarm every member of the bar.

Question 4: “What standards will be applied in enforcing 8.4(g)?” The short answer is, “Who knows?” Will the standard be objective or subjective? Must the complainant be the target of the “offensive” conduct/comment or is being a witness or overhearing enough? What makes a joke sexist? Or a compliment offensive? Can a comment be both acceptable (made by a woman to a woman) and sanctionable (made by a man to a woman) simultaneously, depending on the speaker? Because no answers to these and other critical questions appear in the rule, the effect of passage will be an immediate chilling of speech, guarded interactions with other attorneys, staff and clients, and a reinforcement of the stereotype that women and other groups are overly sensitive and helpless. Even assuming the rule could survive a constitutional challenge, this is an unacceptably high price to pay when compared to the rule’s supposed benefits.

Question 5: “Who will sit in judgment?” The recently-retired General Counsel of the Attorney Disciplinary Office is on record opposing adoption of this rule. Her reasons are obvious. Not only will the rule be impossible to enforce fairly, enforcement will strain limited resources that should be directed towards the ADO’s primary mission: protecting the public. Remember too that ethics complaints become public information shortly after filing (Supreme Ct. Rule 37(20)), which alone can cause irreparable reputational damage. If probable cause is found, the complaint will be heard by a subset of the Professional Conduct Committee, a group of lawyers who volunteer to serve and are approved by the Supreme Court. Given the enthusiasm some backers of 8.4(g) have displayed, if the rule is adopted, I won’t be surprised to see representatives of this group seeking appointment to the PCC. If I were charged with a violation of 8.4(g), these advocates are not the people I would want to decide my fate, which could include lifting my license to practice. Would you?


Sara B. Shirley

Sara B. Shirley is a retired trial attorney and former representative of Hillsborough County on The NHBA Board of Governors.