Nathan Moelker (Regent University, School of Law) has posted Conduct Relating to the Practice of Law: ABA Model Rule 8.4(g) and its History in the Light of the Constitution on SSRN. Here is the abstract:
The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment or discrimination against a list of protected classes. The rule, while well intentioned and targeted at a serious problem, was phrased in a broad manner that swept to include a broad category of protected speech and behavior. The rule has already faced extensive and well crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment, the Free Exercise Clause and the Freedom of Association, further illustrate the failure of the model rule and the dangerous and broad effects of such a prohibition on attorney conduct.