Untitled Texas Attorney General Opinion
KP-0123
| Tex. Att'y Gen. | Jul 2, 2016Background
- The ABA in August 2016 added Model Rule 8.4(g), making it professional misconduct for a lawyer to engage in harassment or discrimination on listed bases "in conduct related to the practice of law."
- Comment 3–4 to the Rule defines harassment/discrimination examples and broadly defines "conduct related to the practice of law" to include representation, interactions with courtroom and non‑courtroom actors, firm management, and bar activities.
- Texas law: the Texas Supreme Court adopts and promulgates professional conduct rules (the Texas Disciplinary Rules), and disciplinary rules apply to licensed lawyers in Texas; Model Rule 8.4(g) has not been adopted in Texas.
- The opinion analyzes whether adopting Model Rule 8.4(g) in Texas would violate attorneys’ constitutional rights (First Amendment free speech, free exercise, and freedom of association) and whether the Rule is overbroad or unconstitutionally vague.
- The opinion contrasts Model Rule 8.4(g)’s broad language with Texas Disciplinary Rule 5.08, which narrowly restricts manifest bias in adjudicatory proceedings and permits legitimate advocacy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 8.4(g) infringes attorneys’ free speech | Rule will chill robust debate and restrict lawful, protected speech "related to the practice of law" beyond courtroom limits | Rule targets discriminatory/harassing conduct, not protected advocacy; aims to protect confidence in the profession | Court would likely find 8.4(g) infringes free speech rights and is unconstitutional in many applications |
| Whether Rule 8.4(g) violates free exercise of religion | Rule could penalize lawyers for sincerely held religious advocacy or representing faith‑based clients, deterring representation | Rule permits legitimate advocacy consistent with Rules; seeks to prevent discrimination | Court would likely find rule infringes free exercise rights as applied |
| Whether Rule 8.4(g) infringes freedom of association | Broad scope could deter membership/participation in faith‑based or politically oriented legal organizations | Rule is aimed at discriminatory/harassing conduct, not mere association | Court would likely conclude Rule unduly restricts freedom of association |
| Whether 8.4(g) is overbroad or vague | Broad terms ("related to the practice of law," "discrimination," "harassment," "legitimate advice") sweep protected speech and lack notice | Comments and limits provide guidance; enforcement targets conduct, not ideas | Court would likely hold 8.4(g) substantially overbroad and void for vagueness; Texas Rule 5.08 is a narrower alternative |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (First Amendment protection for broad public debate)
- Roth v. United States, 354 U.S. 476 (scope of First Amendment protection for unpopular ideas)
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (limits on attorney speech in relation to proceedings)
- Obergefell v. Hodges, 135 S. Ct. 2584 (religious advocacy and protection of debate on same‑sex marriage)
- Roberts v. United States Jaycees, 468 U.S. 609 (freedom of association principles)
- Boy Scouts of America v. Dale, 530 U.S. 640 (associational rights to exclude based on expressive interests)
- United States v. Stevens, 559 U.S. 460 (overbreadth doctrine and substantial unconstitutional applications)
- National Endowment for the Arts v. Finley, 524 U.S. 569 (facial invalidation of speech restrictions is strong medicine)
- New York v. Ferber, 458 U.S. 747 (limits on overbreadth analysis—single impermissible application insufficient)
- Hobbs v. Thompson, 448 F.2d 456 (overbreadth definition in First Amendment context)
- United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (vagueness and ordinary‑person standard)
- Quinn v. State Bar of Texas, 763 S.W.2d 397 (Texas rules construed like statutes)
- Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (vagueness/clarity standard for disciplinary rules in Texas)
- Richards v. League of United Latin American Citizens, 868 S.W.2d 306 (strict scrutiny for state actions classifying by national origin)