Paxton, 091916 TXAGO, AGO RQ-1A8-KP

Case DateSeptember 19, 2016
CourtTexas
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...

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