AUSTIN – Texas Attorney General Ken Paxton released his long-awaited opinion on Dec. 20, 2016, on a proposed adoption by Texas of the American Bar Association's Model Ethics Rule 8.4(g).
The opinion, KP-0123, was issued in response to an inquiry from State Sen. Charles Perry.
Sen. Perry asked this in his Sept. 19, 2016 request: “If Texas were to adopt the American Bar Association’s (ABA) new Model Ethics Rule 8.4(g), could that adoption constitute a violation of an individual attorney's rights under any applicable statute or constitutional provision?”
In his opinion, Paxton proffered that “Model Rule 8.4(g) is therefore unnecessary to protect against prohibited discrimination in this state, and were it to be adopted, a court would likely invalidate it as unconstitutional.”
Rule 8.4(g) was adopted by the ABA on Aug. 8, 2016, at the ABA annual meeting after more than two years of intense discussion. The co-sponsors of the rule had argued that the original rule (which had been implemented in 1983) covering discrimination was too limiting. They were looking to change the language in the rule to be more inclusive to all forms of discrimination and harassment that may occur under the guise of practicing law.
Perry, in his request for an opinion, stated that he felt that perhaps the designers of the new rule had gone too far in creating a rule that would cover all things for all people. He stated: “I fear lawyers could be disciplined or disbarred for associating with a group that espouses a faith-based belief or participates in a discussion about ·controversial social issues. I also fear that similar rules could be duplicated for other professions. Such rules could curtail religious freedoms in these professions as well.”
It is precisely the “openess” of Rule 8.4(g) that Paxton seems to warn about in his ruling, where he states: “If the state were to adopt Model Rule 8.4(g), its provisions raise serious concerns about the constitutionality of the restrictions it would place on members of the State Bar and the resulting harm to the clients they represent.”
The opinion cites three specific concerns that Paxton outlined:
1. A court could conceivably rule that the rule would be an infringement upon the free speech rights of members of the Texas Bar.
2. The court could also see the rule as an infringement upon the religious freedom of members of the Texas Bar.
3. State bar members would also have reason to be concerned about their rights surrounding their freedom of association.
If this rule is not adopted by the state, it does not mean that Texas lawyers would not be bound by any guidelines for their actions. Texas lawyers are currently obligated to hold to the Texas Disciplinary Rule of Professional Conduct 5.08. This bars lawyers from propagating any prejudicial acts or actions “in connection with an adjudicatory proceeding.”
Paxton and Perry were both contacted for this story but neither chose to comment.