AUSTIN – Attorney General Ken Paxton has issued a letter urging the State Bar of Texas to drop any consideration of American Bar Association Model Rule 8.4(g).
The rule, which some see as an unconstitutional restriction on speech, calls for lawyers to educate themselves about reasonable standards of acceptable conduct and prohibits conduct “the lawyer knows or reasonably should know is harassment or discrimination.”
“The proposed rule is broad enough to extend beyond judicial proceedings to include participation in education panel discussions, authoring law review articles, or even informal conversations at a bar association event,” Paxton said. “It effectively suppresses honest and thoughtful exchanges about complex issues.
“Methods of addressing attorney discrimination already exist, rendering the proposed rule not just unconstitutional, but wholly unnecessary.”
Contention between the Bar and the state’s chief attorney has been growing of late, as Paxton recently sided with attorneys seeking to end mandatory dues.
The attorneys argue they shouldn’t be forced to fund the Texas Bar in order to work in their chosen profession, especially when considering that the Bar goes beyond its regulatory function by engaging in “extensive political and ideological activities,” such as diversity initiatives and legislative programs.
They attorneys even reference the Bar’s consideration of Rule 8.4(g) in a recent appellate brief.
The issue has even drawn attention from state Rep. Briscoe Cain, who tweeted yesterday that the bar “needs to lose its autonomy and be regulated by the legislature.”
“Attorneys should not be forced to pay dues to an organization with a political agenda,” he tweeted.
Paxton’s letter warns that the proposed rule threatens the individual liberty of Texas lawyers and is unconstitutionally vague and overbroad.
In December 2016, Paxton issued an opinion describing the rule’s glaring unlawfulness.
In 2018, the U.S. Supreme Court concluded that state restrictions on “professional speech” are presumptively unconstitutional because they are content-based restrictions on speech.
The Texas Bar met today to consider on Thursday whether to refer the rule to a committee for further consideration.