The Honorable Ken Paxton
AGO RQ-1A8-KP
No. RQ-01A8-KP
Texas Attorney General Opinions
September 19, 2016
RECEIVED SEPTEMBER 19, 2016
The
Honorable Ken Paxton
Attorney
General of Texas
Opinions
Committee
P.O.
Box 12548
Austin,
TX 78711-2548
Re:
Request for an Attorney General's opinion concerning
whether adoption of the American Bar Association's (ABA)
new Model Ethics Rule 8.4(g) for attorneys, would constitute
a violation of an individual attorney's rights under any
applicable statute or constitutional provision?
Dear
General Paxton:
Please
accept this letter as a request for an Attorney General's
opinion pursuant to Government Code, Section 402.042(b)(7),
concerning the constitutionality of the adoption of the
American Bar Association's Model Rule 8.4(g)[1] by the
State Bar of Texas.
The ABA
has adopted a new amendment to their Model Ethics of
Professional Conduct Rule 8.4(g) (model rule). Rule 8.4(g)
deems it 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... sexual orientation, gender identity, marital status, or
socioeconomic status in conduct related to the practice of
law."[2] The amendment could open doors to
punish lawyers who express views contrary to the ABA with
regard to religion, sexual orientation, and gender identity
"both in professional service to clients and in the
lawyer's business and personal affairs."[3]
Since,
the ABA is a private organization, Model Rule 8.4(g) does not
create any enforceable law. However, many states look to the
ABA model rules in their creation of ethical requirements,
thus creating risk of a dangerous precedent in Texas.
Discriminatory
behavior by a lawyer is already prohibited in Texas. Texas
Rule of Disciplinary Procedure Rule 5.08 already provides
robust protections against a host of misconduct by
lawyers.[4] Rule 5.08 states, "A lawyer
shall not willfully, in connection...