A proposed professional conduct rule that could subject attorneys to disciplinary action for behavior considered harassment or discrimination has been rejected by the states of Arizona and Idaho, the latest in a growing group of states that have refused to accept the rule.

The state supreme courts in Arizona and Idaho voted recently to shoot down a proposed anti-discrimination amendment to their states' rules of professional conduct for lawyers. The Arizona Supreme Court rejected the rule on Aug. 30, while Idaho's high court took a similar action on Sept. 6.

The decisions follow the American Bar Association's adoption in 2016 of model rule 8.4(g), which specifies that it is “professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” While the ABA's model rules of professional conduct are not binding on individual state bars, they are often looked to as a source of guidance for states considering whether to change their ethics rules.

The ABA model rule has set off a public debate in several states that have considered whether to update their ethics code accordingly, with critics generally arguing that the rule would curtail lawyers' free speech rights and proponents saying it made sense to encode the tenet that discrimination has no place in the legal profession.

Critics have also maintained that language in the rule is too broad and could reach into areas of lawyers' lives that shouldn't be subjected to the professional conduct code. The scope of the rule appears to have played into the decision in Idaho, where the Supreme Court voted 3-2 against it. In its decision noting the outcome of the vote, the Idaho court hinted that a more narrowly tailored version might fare better.

“The final vote mirrored the close division of the bar and society,” the Idaho high court wrote. “Members of the court encourage the Idaho State Bar to revisit this matter in the hopes of narrowing the rule.”

As ALM reported in May, Vermont is the only state to have adopted the ABA model rule into its ethics regulations, while California adopted something analogous to the ABA's model as part of a package of ethics updates approved in May. The California rule changes are expected to take effect on Nov. 1. Some 13 additional states plus the District of Columbia are “studying” the proposed rule, according to an ABA update as of Sept. 19.

In Vermont, the rule was adopted relatively quickly; after the ABA's adoption in August 2016, a Vermont Supreme Court advisory committee later that year proposed an amendment to the state's professional conduct rules in line with the ABA's model. The state high court then promulgated the rule in August 2017, and it went into effect the following month.

The Vermont rule also included a set of advisory notes that offer an explanation of why the state moved quickly after the ABA's model was approved. Those notes said that even before the ABA's approval of the model rule, Vermont in 1986 adopted a similar rule that sought to address similar conduct, and became “one of a group of 25 states frustrated by ABA inaction.” Adopting the ABA's version, the advisory notes said, was done to promote uniformity and to add more detailed language.

While Vermont was an early adopter, the ABA's model rule has met a different fate elsewhere. In addition to the latest rejections in Arizona and Idaho, the states of Louisiana, Nevada, South Carolina and Tennessee have opted against the rule, according to the ABA's tally.

In Texas, Attorney General Ken Paxton effectively shut down a potential rule change in late 2016, issuing an opinion at the time that argued it would violate the First Amendment. Montana's consideration of the rule, meanwhile, ended when the state's Legislature determined that change would put the state Supreme Court in a position of regulating free speech.

Illinois and Minnesota have also declined to adopt the model, but according to an ABA document, both of those states already had a pre-existing rule on the books analogous to the model anti-bias rule.

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