Wednesday, January 25, 2023

Idaho Explains Rejection Of Proposed Anti-Discrimination Rule

The Idaho Supreme Court has issued a statement explaining its decision to reject an anti-discrimination ethics rule that had been proposed by vote of State Bar members

In November 2021, the Idaho State Bar Commissioners (“ISB” or “the Bar”) submitted proposed Resolution 21-01 for consideration by the Bar’s members. The resolution “recommend[ed] Idaho Rule of Professional Conduct 8.4 be amended to include anti-discrimination and anti-harassment provisions.” This resolution was voted on by eligible members of the Bar and passed by a margin of 680 to 329. After the resolution was passed, the Bar recommended to the Idaho Supreme Court that this Court adopt the resolution and amend the Idaho Rules of Professional Conduct. We decline to do so.

We acknowledge that a full explanation of our rejection of the resolution is an unusual response. However, we think it appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future. We commend the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession. However, we feel obliged to reject the proposed resolution for the reasons discussed below.


We conclude that the language of the resolution goes beyond the regulation of employment practices and is instead a content-based regulation of speech protected by the First Amendment. As a result, it is subject to a strict scrutiny analysis. While the framework of the resolution is based on Title VII principles of unlawful discrimination and harassment, and while the resolution does regulate some conduct, the resolution also singles out certain topics for professional discipline while leaving other topics not subject to discipline. An argument similar to the P&E Section’s argument was rejected by the Court in R.A.V.

Void for vagueness

Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct. Comment 4 in Resolution 21-01 attempts to narrow attorney conduct subject to the proposed rule. It specifically exempts “bar association, business, and social activities,” but only those that are “outside the context” of what the Resolution does include. This comment is confusing because it leaves the reader wondering what is included in the “context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.” Would a law firm’s holiday party fall “outside the context of . . . the course and scope of employment in a law practice[?]” What about a business dinner that included some of the firm’s partners but not all of them? What about attendance at the Idaho State Bar Annual Meeting or Bar section meetings when required by one’s law firm? These hypotheticals merely offer a small example of the gray area created by the Resolution regarding what type of attorney conduct and speech would rise to the level of professional misconduct.

Finally, and importantly, the Resolution could have a chilling effect on attorney speech. While there is evidence that the Resolution’s drafters sought to curb discrimination and harassment identified in the survey conducted by the Bar, such an intent cannot be used to justify the possible chilling of free speech. The Resolution covers a substantial amount of protected speech. By the same token, under a vagueness analysis, protected speech could be chilled due to both the Resolution’s expansive scope and its undefined terms. As a result, the Resolution is unconstitutionally vague. 

(Mike Frisch)

Bar Discipline & Process | Permalink


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