Idaho Supreme Court Rejects Attorney’s Licensing Act

Free Speech


|The Volokh Conspiracy

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Resolution 21-01, modeled after Rule 8.4(g) proposed by the American Bar Association, would allow attorneys to be prosecuted for “city(ies) in … interference,” defined as “on behalf of a client or in the conduct or management of a legal practice or in process and scope of work in a legal profession, engaging in conduct that the lawyer knows or should have known is harassment”:

Bullying is derogatory or insulting verbal, written, or physical behavior directed at a person based on race, sex, religion, national origin national, ethnic, disability, age, sex, identity, marital status, or economic status. To commit a violation of this section, the harassment must be serious or of such an extent as to create an environment that is intimidating or intimidating to a reasonable person. This subsection does not limit the power of a lawyer to accept, refuse, or withdraw representation as permitted in these Rules or to withhold advice or counsel consistent with these Rules.

Explanation: … Harassment includes sexual harassment such as unwanted sexual advances, requests for sexual acts, and other unwanted verbal, written, or the body is of a sexual nature. Factors that must be considered to determine whether conduct rises to the level of harassment… include: the severity of the incident; its weight; whether it is threatening or insulting, or merely offensive speech; or harm another person; or unlawful interference with conduct related to the legal profession. Petty sales, temper tantrums, and accidents, unless they are very serious, will not rise to the level of trouble…. The the principal laws of … anti-solicitation laws and statutory laws that may govern the application of (this provision).

“On behalf of a client or in the conduct or management of a legal practice or school and generally engaged in a legal profession” does not include participation in lawyers’ associations, businesses, or activities social activities outside the context of representing a client or performing or managing a legal practice or working in the academic and general activities of a legal profession.

But on Friday In Idaho State Bar Resolution 21-01the court found the petition unconstitutional:

Resolution 21-01 emphasizes one point of view over the other (tolerance for a protected class of people versus intolerance for a protected class of people); therefore, it is also a conceptual limitation. The resolution is not limited to speech in relation to a person in relation to that person protected status, but speech is prohibited because the speech is offensive or offensive and the speech is based on a specific protected status….

For example, a lawyer can speak positively about same-sex marriage without violating the Bar Code, while another lawyer speaks Negligence about same-sex marriage may lead to misconduct. Resolution 21-01 deals with “humiliating or humiliating verbal, written, or physical conduct toward a person based on race, sex, religion, national origin, race, disability, age, sexuality, gender identity, marital status, or cultural status” is so severe and excessive as to create an atmosphere of intimidation or hatred towards a target person….

Resolution 21-01 covers the lawyer’s speech “on behalf of a client or in the performance or management of a legal profession or the education and scope of work in a legal profession.” In an attempt to shorten the Resolution, the authors included Statement 4: “‘On behalf of a client or in the performance or management of a legal profession or school and the public of employment in a legal practice’ does not include participation in bar associations, business, or social activities outside of the capacity of representing a client or practicing or managing a legal practice or working in the class and scope of a legal profession.” This statement is vague at best because it describes the circumstances under which the law exists it is not possible apply as in no case where the law exists what up use, rather than trying to explain, for example, what is involved in being a client’s representative and acting and acting or engaging in the legal profession.

The list of vague exemptions of participation in bar associations, businesses, or social activities outside the scope of work does not specify the conditions to which they apply, and therefore, it clearly shows a lot of protected speech. As written, the resolution’s prohibition would extend to participation in government associations, businesses, or social activities if that participation occurs in the class, operation, or administration of a legal practice. It is difficult to find a partner of a law firm or a lawyer who participates in the activities of lawyers’ associations and businesses that are not related to their legal work.

In addition, many legal employers encourage their employees who are lawyers to participate in these activities as part of their work, to help develop business for the company. As a result, statement 4 seems to confirm that a large part of the associations of defense lawyers, business, and social behavior will fall into the Resolution’s prohibition. The Resolution’s failure to provide a narrower scope of use may result in the criminalization of protected speech, which undermines the effectiveness of the Resolution. in its current state.

In addition, the Resolution “give(s) unusual discretion” to the ISB’s governing bodies. By not clearly defining the speech as “threatening” or “hostile,” the Attorney General’s disciplinary panel will find discretion to determine whether a lawyer has engaged in misconduct under Rule 8.4(g). Although the Decision provides parameters to help define the problem, these parameters do not adequately describe or what conduct is “threatening” or “hostile” and therefore amounts to unlawful conduct. We cannot conclude that these criteria are sufficient to explain the phenomenon. Therefore, the Resolution is overreach, and therefore, invalid under the First Amendment….

Resolution 21-01 is also constitutionally vague. The Resolution leaves it up to a prudent lawyer to determine exactly what type of conduct or speech constitutes misconduct…. Will the date party fall? law office break “outside the scope of … the course and scope of work in a legal profession(?)” What about a business dinner involving some of the firm’s partners but not all of them? What about attending Idaho State Bar Annual Meetings or Bar Association meetings if required by a law firm? These examples are just a small sample of the gray area created by the Decision regarding the type of behavior and speech of lawyers who to the point of misconduct.

Finally, … (w) although there is evidence that the authors of the Decision tried to prevent discrimination and violence revealed in the investigation conducted by the Attorney, it cannot be used this hope proves that the freedom of speech may be frozen. The Resolution contains a number of protected speech. At the same time, under a vagueness analysis, protected speech can be satisfied because the scope of the Decision and its implications are not defined. ….

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