A concerned lawyer sends in this Eugene Volokh item about a proposed American Bar Association rule change to the ABA’s conduct rules — which have been adopted by a number of states to govern their lawyers. The rule change, if approved, stands to make anything a lawyer says (in the conduct of her job) that offends an officially protected victim group a violation of professional standards — and therefore subject to sanction. Volokh:

So say that some lawyers put on a Continuing Legal Education event that includes a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side says something that is critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar:

1. He has engaged in “verbal … conduct” that “manifests bias or prejudice” towards gays, Muslims, or transgender people.

2. Some people view such statements as “harmful”; those people may well include bar authorities.

3. This was done in an activity “in connection with the practice of law” — Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it’s organized through a local bar association, or a business activity.)

4. The statement isn’t about one person in particular (though it could be — say the debater says something critical about a specific political activist or religious figure based on that person’s sexual orientation, religion or gender identity). But “anti-harassment … case law” has read “harassment” as potentially covering statements about a group generally, even when they aren’t said to or about a particular offended person, and the rule is broad enough to cover statements about “others” as groups and not just as individuals.

Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint. Again, you’ve engaged in “verbal … conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

Read the whole thing.

Volokh goes on to say in a separate post that under the proposed rule change, a law firm could theoretically be sanctioned for hiring a new lawyer who went to an Ivy League law school, over competitors who went to less prestigious law schools. The reason? Discrimination on the basis of “socioeconomic status.”

More about this issue at the Wall Street Journal‘s law blog, and at the ABA Journal.

At this point, this is just a proposal by an ABA committee. But it is alarming that the national lawyers’ professional association is even thinking this way. This is not nothing. Sign of the times.