Comment in Opposition to
Proposal 22-06 Offered by the Illinois State Bar Association

Harassment and discrimination have no place in the practice of law. If there is a proven instance of such conduct by an Illinois licensed attorney, in addition to any civil or criminal penalties, the perpetrator should be punished through the currently applicable Illinois Rules of Professional Conduct. But that uncontroversial position is not the issue presented by the proposal to amend Rule 8.4(j) of the state rules. Instead, the issue is what is the best means to address harassment and discrimination among the regulated legal community.

Contrary to the position implicit in the proposal, the currently existing avenues to address such conduct through the EEOC, Illinois Human Rights Commission, and other administrative agencies—and ultimately through the state and federal courts—and only then through professional discipline, is the appropriate means by which to litigate and determine whether anyone has committed acts of unlawful harassment or discrimination. That means is already codified in the current version of Rule 8.4(j), which should remain unamended. The proposal to amend Rule 8.4(j) would essentially convert the Illinois Attorney Registration and Disciplinary Commission (ARDC) into an employment agency, by making it professional misconduct for a lawyer to “manifest[] bias or prejudice on the basis of” a number of listed protected categories. The ARDC is not funded and staffed and its staff is not trained to handle such claims.

Implicit in the proposal is that there are a large number of licensed attorneys who have committed harassment and discrimination and that for some reason the current means of addressing that conduct has been unsuccessful. If that is true, then the amendment to Rule 8.4(j) would cause the ARDC to be overrun with complaints. If the amendment would not produce an avalanche of complaints, then the proposal is a solution in search of a problem. And in the absence of a showing that there is such rampant and unpunished harassment and discrimination in the Illinois bar, that brings the discussion to the substantial First Amendment problems with the proposal.

Those problems have been well documented and discussed for the near decade that proposals of this kind have been circulating (see examples cited and link in the comment, in which I join six other lawyers). The proposal to amend Rule 8.4(j) is a near identical facsimile of American Bar Association Model Rule 8.4(g). As discussed in this comment, the modifications to Model Rule 8.4(g) in the current proposal to amend Rule 8.4(j) do not ameliorate the threat to free speech by the proposal. It should be rejected as not only unnecessary, but contrary to the oath taken by Illinois lawyers to “support the constitution of the United States and the constitution of the state of Illinois.”

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.