Comments Regarding Proposed Revision to Rule 8.4(j) of the Illinois Rules of Professional Conduct

COMMENTS SUMMARY

NCLA submitted these comments in connection with the Rules Committee’s consideration of a proposal to, among other things, amend Rule 8.4(j) of the Illinois Rules of Professional Conduct and associated Comments. The proposed amended Rule 8.4(j), which largely mirrors Rule 8.4(g) of the American Bar Association’s Model Rules of Professional Conduct, would subject attorneys to discipline for uttering words deemed harassing or discriminatory. NCLA strongly urges the Committee not to adopt the Proposed Rule. There is no need for an additional rule governing discrimination-based misconduct by Illinois attorneys; such misconduct is already adequately addressed by Rules 8.4(d) and 8.4(f) of the Illinois Rules of Professional Conduct.

The Proposed Rule raises significant constitutional concerns. It authorizes Illinois to discipline lawyers (including imposing sanctions that deprive lawyers of the ability to earn a livelihood) based on overly vague standards. Recent history demonstrates widespread disagreement over what conduct/speech one “reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex [etc.].” Moreover, imposing content- and viewpoint-based restrictions on attorney speech (by declaring that speech expressing certain viewpoints constitutes “harassment” or “discrimination”) violates clearly established First Amendment norms. The U.S. Supreme Court has repeatedly held that attorneys are entitled to the same free-speech protections enjoyed by all other citizens.

ABA Model Rule 8.4(g) has been widely criticized by leading constitutional scholars as an unwarranted speech code for lawyers. As UCLA law professor Eugene Volokh has explained, adoption of rules substantially similar to ABA Model Rule 8.4(g) (such as the Proposed Rule) is likely to deter lawyers from speaking out on important legal issues, for fear that they will face severe sanctions if someone later concludes that their speech constitutes harassment or discrimination on the basis of one of the 16 listed characteristics. Such chilling of speech is intolerable; our free society
cannot function effectively unless attorneys can speak their minds openly without fear of losing their law licenses.