Some readers may be aware that for the last 20 years, I have written an ethics column for The Bencher, a publication of the American Inns of Court. One of my recent columns, on the newly adopted Model Rule of Professional Conduct 8.4(g), generated an unusual “letter to the editor” from the current president of the American Bar Association. A much more scholarly follow-up, so to speak, was recently published as a law review article entitled: New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, by Andrew F. Halaby and Brianna L. Long, which can be found at 41 J. Leg. Prof. 201 (2017). The authors of the law review article agree more with the views articulated in my article than those expressed in the letter to the editor from the current head of the left-leaning national lawyers’ group. A few highlights from the law review article:
- New Model Rule of Professional Rule 8.4(g) “suffers from substantive infirmities”
- There is “considerable doubt whether the new model rule could be enforced in a real world setting against a real world lawyer”
- The “model rule’s afflictions derive in part from the indifference on the part of the rule change opponents, and in part form the hasty manner in which the rule change proposal was pushed through to passage.”
- “Absent rigorous resolution of the many questions, the new model rule cannot be considered a serious suggestion of a workable rule of professional conduct to which real world lawyers may be fairly subjected.”
The authors of the law review article explain the need for further scholarship on the issues raised by this new model rule, which in some circles appears to be motivated more by progressive politics than by the typical motivation for new or updated rules of legal ethics.