Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.  This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016.  Last week, the Louisiana Attorney General’s Office issued Attorney General’s Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana’s proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform….ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion.  The United States Supreme Court specifically noted in Obergefell v. Hodges that