Much has been written about the new Model Rule of Professional Conduct that the American Bar Association (ABA) adopted in August 2016. My ethics column in the November/December 2016 edition of The Bencher, the national publication of the American Inns of Court, explained how the new ethics rule, which the various states can decide to adopt–or not–expands in an amorphous manner the concepts of discrimination and harassment. That article quoted from law professors who teach legal ethics and constitutional law, as well as other commentators.

Since that publication, which raised questions about the rule, the scholarship on the topic now includes several law review articles, including Andrew F. Halaby and Brianna L. Long, New Model Rule of Professional Conduct 8.4(g): Legislative History, Enforceability Questions, and a Call for Scholarship, 41 J. Leg. Prof. 201 (2016-2017)(Halaby Article); Note, Discriminatory Lawyers in a Discriminatory Bar, 40 Harvard J. Law & Pub. Pol. 773 (June 2017)(Harvard Note).

It is a violation of the new Model Rule 8.4(g) to engage in discrimination based on “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.” Discrimination includes “verbal” conduct that “manifests bias.” The eleven protected categories are not entirely inclusive. Omitted from the classifications are such personal attributes as weight, height and veteran status, for example.

For the first time since I started writing the ethics column for The Bencher over 20 years ago, someone wrote a letter to the editor about my column. The author of that letter about my column on the new rule was the president of the ABA. The issues raised by the new model rule deserve a robust analysis and scholarly debate. A few recent law review articles contribute to that goal. More scholarship on the topic is needed. This short essay merely identifies some of the aspects of the recently promulgated model rule that require further study before being adopted by the various states.

Let’s start with the basic premise that everyone should abhor illegal discrimination and harassment in all its nefarious forms. One of the issues created by the new model rule, however, is that it expands the concepts of both discrimination and harassment in a way that reasonable people can, and do, sincerely differ about. Should we impose serious penalties on, and describe as a violation of legal ethics, conduct that reasonable and ethical people sincerely disagree about for intelligent reasons?

It deserves mention that the membership of the ABA counts for a relatively small fraction of all lawyers in the U.S. Yet, the leadership of the ABA is making normative judgments, and setting moral standards, for a majority of the lawyers in this country on a matter about which most of the country is deeply divided. As the Halaby Article explains, the process used to adopt Model Rule 8.4(g) did not benefit from the same level of participation and the same lengthy comment period as did many of the prior major changes in the rules that govern the legal profession. Remember that these rules subject those who violate them to possible loss of their license to practice law and their ability to make a living.

In their zeal to create a utopia, which some might view as a dystopia, the authors of the new model rule have not avoided the fallacy that the end always justifies the means, or to use another maxim: they threw the baby out with the bath water. We should “keep the baby” and find a more nuanced approach to eliminating the bath water–in this case, unwanted discrimination, harassment and lack of diversity in the profession.

The British statesman William Pitt the Younger was attributed with the observation that “necessity is the plea for every infringement of human freedom.” We can all agree that invidious discrimination and harassment should be condemned, but not everyone agrees that other fundamental rights should be trampled on in order to achieve the goal of banning such discrimination and harassment.

One of the problems with the rule is vagueness. It lacks a definition for what it prohibits: discrimination, harassment and applying that behavior to socioeconomic status, for example. Definitions in substantive law, and other sources, can certainly be used as a reference, but they are not uniform and may not apply in all contexts. The Halaby Article describes the new model rule as being “riddled with unanswered questions, including but not limited to uncertainties as to the meaning of key terms…as well as due process and First Amendment free expression infirmities.” Others are more supportive.

Although the Harvard Note argues that amendments to the new model rule should be made before states begin adopting it, overall it supports a codification of the moral judgment that discrimination and harassment are cardinal sins that must be banned from the legal profession. What constitutes a sin, however, needs to be defined. An inherent problem of the ABA’s attempt to use new Model Rule 8.4(g) to codify moral judgments, is that the ABA membership constitutes a small percentage of all lawyers in America and reasonable people can differ about whether the leadership of that group is the appropriate elite to adopt rules that impact personal behavior beyond the administration of justice–much like the magisterium of a church would articulate rules that apply to all areas of one’s personal life – – not only rules governing the practice of law.