New ABA rule on discrimination rejected in Pennsylvania and Illinois, Texas

In August 2016 the American Bar Association adopted a revision to Rule 8.4 (g) on discrimination.

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. 

The key language is the addition of "knows or reasonably should know".

Professor Alberto Bernabe reports that the Pennsylvania Disciplinary Board has recommended that the Commonwealth courts has recommended the state follow Illinois which has adopted this language:

"violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer."  This is the same language that has been in Illinois Rule 8.4(j) since 2010. 

As Bernabe observes the Illinois approach, though narrower, avoids the potential first amendment problems cited by Texas Attorney General Ken Paxton, as reported in ABA Journal.  Paxton said:

“While decisions of the United States Supreme Court have concluded that an attorney’s free speech rights are circumscribed to some degree in the courtroom during a judicial proceeding and outside the courtroom when speaking about a pending case, Model Rule 8.4(g) extends far beyond the context of a judicial proceeding to restrict speech or conduct in any instance when it is ‘related to the practice of law,’” Paxton’s Dec. 20 letter (PDF) reads.
Some have suggested that attorneys speaking about illegal immigration, same-sex marriage or laws restricting bathroom usage could be subject to discipline under Model Rule 8.4, Paxton wrote.