The Montana Legislature has declared “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state. Senate Joint Resolution 15 was approved by the full House earlier this week, having cleared the Senate in February.
First, some background.
The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”
At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:
It is 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 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 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 Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.
SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power.”